I found some in Francis Fukuyama’s latest book, Identity: The Demand for Dignity and Recognition (2018).

Fukuyama’s thesis is simple: Folks want recognition. When they don’t get it, they become resentful. Consider the role of honor in Ancient Greece. Warriors were given special recognition for their willingness to place their lives on the line. In the Republic, Plato recognized the role of spirit, or thymos, in the class of guardians – those dedicated not to the life of reason, the world of the philosopher-kings, or to the mundane task of producing goods and services. Warriors, or guardians, are driven by a sense of honor, or recognition of their worth by others.

As readers of the Republic know, the city he imagined was merely a device for illustrating what a well-ordered soul looks like. We all crave recognition. The long arc of western civilization is the struggle to assure equal regard for all.

But a funny thing happened on the road to modernity. The distinction between inner worth and external appearance in the world that was once was tethered to a spiritual conception of life’s worth and meaning has yielded to a secular commitment to equality in the here and now. The accelerating pace of claims for equal treatment yields new and novel claims that are, frankly, wearying to behold.

We’ve taken an odd turn. We value diversity for its own sake, in part because we lack the means of distinguishing better from worse. The result is atomization of society into a series of ever smaller, and some might say, ever more bizarre tribes.

I overstate Fukuyama’s claims.

Let’s look at his own words.

Is diversity an end itself?

“[D]iversity cannot be the basis for identity in and of itself; it is like saying that our identity is to have no identity; or rather that we should get used to our having nothing in common and emphasize our narrow ethnic and racial identities instead,” he writes.

A community is more than a mere collection of individuals grazing on the commons. A community is bound together by common conceptions of right, as Cicero once said.

“[We] need … an understanding of positive virtues, not bound to particular groups, that are needed to make … democracy work,” Fukuyama states.

Where do such values come from?

Fukuyama doesn’t say. He merely makes a plea for the future. We need “citizenship and the exercise of certain virtues,” he claims. “While the United States has benefited from diversity,” he writes, “it cannot build its national identity around diversity as such. Identity has to be related to substantive ideas such as constitutionalism, the rule of law, and human equality. Americans respect these ideas; the country is justified in excluding from citizenship those who reject them.”

This is almost heady stuff. Fukuyama is playing John the Baptist; he sets a prophetic expectation without offering a glimpse of the promised land.

But his discussion is helpful, especially with regard to immigration. Somehow he cuts through the hysteria of the left and right, drawing a bead that seems true:

“What refugees are owed is sympathy, compassion, and support. Like all moral obligations, however, these obligations need to be tempered by practical considerations of scarce resources, competing priorities, and the political sustainability of a program of support.”

And again:

“No state can undertake an unlimited obligation to protect people outside its jurisdiction, and whether the world would be better off it they all tried to do so is not clear. While countries rightly feel an obligation to shelter refugees and may welcome immigrants, such obligations are potentially costly, both economically and socially, and democrats need to balance them against other priorities.”

Surprisingly, no one seems to comment on the fatal flaw in our immigration policies. We permit skilled and talented immigrants to come here from around the world, thus depleting other nations of the best their fellow citizens have to offer. Is it any wonder less talented folks clamor for a place among us? What would happen if we recognized the reality of scarce resources, and encouraged the talented tenths of the world to build a better world in their own backyard?

I watched the mid-term elections with a sense of foreboding. Where do we go from here?, I wondered. 2020 fast approaches, and with it I am sure of one thing: Another whirlwind season of political blather devoid of substance but chock full of emotion. Both the left and the right are tedious masters of tired tropes.

I urge you to read Fukuyama. There will be a tomorrow. That much is almost certain. Whether we can make it one we care to live in is the question. Francis Fukuyama warns of the excesses of identity politics severed from claims of values common to all, and he warns of a naïve sense of globalism.

What comes next?

I haven’t the faintest idea. But for the first time in a long time, I became hopeful reading Fukuyama’s book. You should read it, too.

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https://www.pattisblog.com/index.php?article=Fukuyama-Offers-Insight-Into-The-World-To-Come_7063Mon, 12 Nov 2018 00:00:00 +0000 Jill Lepore’s These Truths: A History of the United States, promises to be just the book we need in divisive times. It sets out to consider a question posed at the time of the republic’s founding by Alexander Hamilton: “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

I raced through the first several hundred pages of the book with a hunger to learn what course she could suggest through what looks like a complete collapse of civility and republican principles in our time. Yes, Magna Carta’s commitment to the rule of law mattered; yes, the English Civil wars and the beheading of Charles I in the 17th century shed new light on a people’s power to resist and laid bare the foundations of political authority; yes, the colonial experiments with self-government sowed seeds that would blossom into rebellion.

She writes in balanced and sometimes moving prose. (But first you must endure an introduction that putters where it should soar: the Constitution was sent to printers “who set the type of its soaring preamble with giant W, as sharp as a bird’s claw." God save the ornithologists.)

Once past the preface, however, the prose serve, and serve well. But Lepore never really answers the question she set out to consider. It’s almost as though she wrote 600 or so pages, got us to the post-World War II era, and then, rather than quit while she had a complete narrative arc, decided to press on through the 2016 election.

Here’s her thesis: As soaring as our founding documents sound, their words do not match the reality of our lives. We speak of the equality of men, but for generations regarded women as something else, and African-Americans as less still. At the heart of the American promise lies a hypocrite’s compromise.

We’ve stumbled through a civil war in an effort to make plain words have plain practical meaning, but always our prejudices and biases get in the way. Equality? Not so then, at the time of the founding; not so at the time of the civil war; and not so now – the color line remains real, so, too, does the gender line. And lest you think full equality has arrived, consider now the widening gap between rich and poor.

We’ve never lived up to the dream we sold to the world as proud inhabitants of a City of a Hill.

Lepore chronicles the fault line in our lives. She writes well about W.E.B. DuBois and Susan Anthony. Malcom X speaks, and so, although in an oddly muffled voice, does Martin Luther King. She doesn’t wince when recounting how often our founders and political leaders asserted that this a country built and destined for white folk.

We’re struggling, all sinners in need of the grace ideals can bestow. Preach, sister. Tell me how to hear the muse of our ideals today, in a post-truth era, where identity trumps character and pathos is king, where fake news is the coin of the realm.

Somehow, Lepore fails to make the transition into the 21st century in a convincing way. She has plenty to say about the role of parties and polling and computing power to divide us in instrumental ways designed to win elections at all costs. She writes about how computers and IPhones have transformed our worlds. Yet not once did I see her discuss artificial intelligence and the replacement of human capital by the Internet of Things.

Too much time is spent on Alex Jones, Infowars, and cable news. Yes, we’re divided, fractured, and living in ideological silos. Lepore provides no account of how we’ve become so fractured, except to write extensively about the advent of political consultants. (I learned a boatload about Campaign, Inc., a consulting firm founded in 1933 by Clem Whitaker and Leone Baxter, that helped torpedo national health insurance and then served as the slash and burn strategists for a series of office seekers. If Donald Trump has ever read anything, I suspect he’s read a Campaign, Inc., playbook. Their campaigns were all about going on the offensive, using half-truths, even lies, boldly proclaimed, and castigating your critics.)

But slick advertisers, pollsters and political hacks working for a fee didn’t knock us off course. These are the vultures feeding on the culture in which they live.

Lepore writes as though culture, ideas, philosophy don’t matter. Just how she managed to write a nearly 800-page narrative on American history without ever discussing Isaiah Berlin and his discussion of pluralism and monism, or his essay on liberty, is beyond me.

Isn’t it possible that the current malaise is nothing more than pluralism taken to its extreme? When everything matters, there is no longer any sense in drawing distinctions between better and worse. We value diversity for diversity’s sake now. There is no meaningful discussion of the good life. In an effort to make every odd duck feel safe, we tolerate everything except the voice foolish enough to assert that some things are better than others. The bottom has fallen out of pluralism, I say. In the absence of even the semblance of trying to distinguish between better and worse, all that really matters is pathos. Everything suddenly matters. A certain weariness sets in, and is soon replaced by exhaustion. You, too? We mutter, as yet another victim -- no, make that survivor -- demands recognition.

My hunch is that our time is a time of fear. Rapid change has displaced settled notions of what a good life can and should look like. A displaced middle-class looks warily at the immigrants coming here to escape devastation in less fortunate parts of the world. The American pie is shrinking, and, when it is served, the invisible hand doing the serving is less the market that a computer’s idea of efficiency.

Not a word about opiod deaths, Ms. Lepore? Consider the following possibility: that in an era bereft of common ideals, where the only claim to distributive justice is being a victim, suicide is less an epidemic than a vote on the American prospect.

Sure, this is a depressing conclusion. But history has winners and losers. We’ve lost our way and it is by no means clear that there is a way out. Consider simply the confirmation fight in the Senate over Brett Kavanaugh. The U.S. Senate as the world’s greatest deliberative body? Only if you think a food fight is fine dining.

Unless something changes the answer to Hamilton’s question will be “no.” The government now is less an instrument of common good and more a tumor to be managed.

I want historians like Lepore to dig harder. What are the currents that are undoing us?

The American experiment succeeded so long as there was abundance. In an era of scarcity the rich grow richer. The rest of us scramble in any way we can to matter. Hence the thrill of identity politics. In the absence of realistic hope for earning a share of a shrinking pie by contributing to the public weal, claim victimhood. But when everyone is a victim, then no one is.

I hope Professor Lepore does a new edition of this book. She should rework the last four chapters, the part on the post-World War II era. After brilliant analysis of our distant past, Lepore seems to lose her way the closer she got to our time. This, more than anything, tells me that despite her wish to claim that a society founded of choice and reflection can endure, she’s secretly reached the conclusion that it cannot.

I’m hoping she’s wrong, but nothing in her book reassured me. Everything about the daily news tells me a certain deadly inertia has set it. We the people are enduring dark times.

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https://www.pattisblog.com/index.php?article=Jill-Lepores-Almost-Brilliant-American-History_7062Tue, 09 Oct 2018 00:00:00 +0000We now know the name of the woman who accused Judge Brett Kavanaugh of sexual assault in an anonymous letter to California Senator Diane Feinstein earlier this summer. She is Christine Blasey Ford, a pscyhology professor. The Washington Post reported on her identity this weekend, after she sat with a reporter and provided what corroboration she could to her claims of misconduct.

Judge Kavanaugh should sue Ford for defamation. It would do the country a world of good to see what actual proof looks like.

The food fight that was the Senate Judiciary Committee's hearings on the confirmation of Judge Kavanaugh to serve as Supreme Court justice spared us the Ford saga. Only after the committee hearings ended, did Feinstein leak the contents of the letter she had sat on for months. An ambush is best when the target can't shoot back.

While a high school student, Judge Kavanaugh is alleged to have taken Ford to a bedroom, forced himself atop her, and placed his hand over her mouth. Had the other male in the room not intervened, there's no telling what would have happened. Or so the anonymous letter contends.

Judge Kavanaugh has denied the claims.

Senate Democrats chose not to confront the judge with the accusations in a forum in which he could respond. They went to the press, where the standards of proof are low. The anonymous accuser was the latest #MeToo Madonna. We were told to believe her because she said it. That plays in some quarters, especially among those who are determined to block Judge Kavanaugh's confirmation to the high court at all costs. The judge is too conservative. He might vote to overturn Roe v. Wade.

But the anonymity of the complaint deprived it of more than public relations value. To be credible, the story needed a face, a name, a person to own it in a public, or semi-public forum. So Ford came forward, in the manner, at the time, and for the reasons of her choice.Let's learn more about her motives, the better to assess her credibilty.

Judge Kavanaugh should have her served with a defamation suit before the Sun goes down.

Ford told The Post that it's all true. She even brought to an interview with reporters records from a treating psychologist whom she saw just a few years ago. She appears to have sought therapy in mid-life, perhaps marital therapy -- the Post doesn't say.

What the Post did say is that she told her therapist there were four men in the room. Not two. The discrepancy? The therapist go it wrong, Ford told the Post. Maybe. Although that's not the sort of detail a "victim" is likely to get wrong.

She also never named the men -- whether it be two, four, six of eight. Why? They are now powerful. They might retaliate. But surely these villains weren't powerful in high school, or in college, or in professional school, or when they first entered the job market? No complaint then?

Neither would it be credible for her to claim the shame card, the most common reason folks contend they sit on allegations for decades. Ford wasn't raped. There's little shame about being held down by a drunken fellow party goer, as terrifying as that might have been -- if true. If her claims were true in the 1980s, why not address them then, or in the decades since?

Let's have a public trial. Let's discover Ford's partisan affiliation, her interest in the outcome of the Kavanaugh hearings, her motives for coming forward only when it is too late for the judge to respond except at the cost of derailing his confirmation vote. I'm willing to bet she's a lifelong Democrat. I'm willing to bet she was outraged that Senate Republicans did not bring President Obama's last nominee to the high court, Merrick Garland, to a vote in 2016.

Connecticut Senator Richard Blumenthal and New York Senator Chuck Schumer will now call for delay of the confirmation vote. Perhaps they will even call for reopening the confirmation process. Anything to push a full Senate vote on Kavanaugh off until after the November election, after which time, they no doubt hope, Democrats will be in the majority of the Senate and in a position to block the nomination of anyone President Trump nominates to the high court.

Don't run from this fight, Judge Kavanuagh. Embrace it. File suit. It's high time one of the accused demanded due process in the face of these libidinal smear campaigns. We've seem moguls, media personalities and Senators cut and run in response to anonymous claims of misconduct. Stand up and fight.

Unless, of course, you're guilty. Then apologize and encourage us all to move on.

In the meantime, the Senate ought to hold a vote on the confirmation. If some Senators think these ancient claims are enough to force them to vote no, then so be it. The rest of us will await a contested civil trial. A weary nation will thank the judge for showing us what real proof looks like.

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https://www.pattisblog.com/index.php?article=Will-Kavanuagh-Sue-For-Defamation_7061Sun, 16 Sep 2018 00:00:00 +0000 Remind me never to piss off John Uustal. Or, if I do, remind me that I should get him angry at someone I don’t like. The Florida litigator is so furious just now, he’s putting his money where his mouth is. If you have the information he is looking for, he will pay you up to $100,000.

Uustal is a Florida plainitffs' lawyer. When he smells injustice, he goes into attack mode. His clients are glad he does. He’s a David in search of deep-pocketed Goliaths.

Now plaintiffs’ lawyers get a bad rap. The business community regards them as gold-diggers – lawyers bent on making a buck from other people’s sorrow. That has a fine moralistic tinge to it. But let’s be real: when a corporation makes a mistake, it typically has a budget for legal fees that no little guy can match. Skilled plaintiffs' lawyers take cases on contingency fee because they assume the risk of failure.

Folks like to talk about the McDonald’s coffee verdict years ago as an example of civil litigation run wild. You recall that suit, don’t you? That’s the case involving Stella Liebeck, who, at age 79, was badly burned when a cup of scalding coffee offered at a McDonald’s drive-through spilled into her lap. A jury awarded her almost $3 million in punitive damages.

The case has been the staple of late-night comics and corporate mockers for almost a quarter of a century. I mean, millions of dollars for spilling a cup of coffee? Plenty of folks think that if you drink hot beverages and drive, you’re assuming the risk of a mishap.

But here’s the story that rarely gets told: McDonalds is a massive corporation. It was aware of risk of customer’s being burned by coffee. Indeed, it estimated the number of such cases that would occur in a given year with the help of an actuary or two. It then had to decide just how hot to serve its coffee. The economists, marketers and actuaries got together and made a decision: If McDonald’s wanted to keep market share for piping hot coffee, it had to serve coffee at a temperature far hotter than its competitors. But that carried a risk of additional injuries for the inevitable spills.

In the end, the jury in the McDonald’s case heard that company executives made a cost-benefit analysis. It was willing to risk serious burns to customers so long as it made more money in profit selling coffee than it paid out in injury claims. The $3 million paid to Ms. Liebeck represent an estimate of one day’s profit from selling coffee.

That’s a trifling sum; hardly the boon to Ms. Liebeck propagandists make it out to be.

But in an era of fake news, the headline is the thing. Why not another McDonald’s suit to fan the flames of animosity to plaintiffs and plaintiffs’ lawyers?

A new McDonald’s suit was recently filed in Southern Florida. The basis of the suit? McDonald’s charges the same price for a quarter pounder with cheese as it does for a quarter pounder without cheese. The lawyers have filed a class action suit so that those who eat their meat without cheese get a rebate of some sort. The lawyers, of course, can rack up big fees. That is if the case survives a motion to dismiss.

The suit is asinine, and lawyers who filed it should be ashamed. They give ambulance chasers a good name.

But what if the lawyers aren’t doing this because they actually believe that they can win this silly suit? What if they are doing this as corporate dupes? Tongues are wagging in Florida, and the hunt is on for information about who is funding this stupid stunt.

So if you have information about who is financing this execrable nonsense, contact Uustal.

“We know that big corporate interests have successfully attacked the credibility of our civil justice system by highlighting frivolous lawsuits. They do it so they can eliminate truly righteous lawsuits,” Uustal says. “Frivolous lawsuits are poison. They not only create unfair costs for innocent defendants, they also allow powerful corporate interests to create a smoke screen to hide their truly despicable conduct.”

Do you have any idea who is behind this latest McDonald’s suit? If so, contact Uustal at JohnUustal.com/conspiracy-evidence. He’s offering as much as $100,000 to the first person who offers proof that leads to a judgment finding that the lawsuit is just a corporate scam.

Tell him Norm sent you his way.

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https://www.pattisblog.com/index.php?article=Who-Wants-100000_7060Wed, 06 Jun 2018 00:00:00 +0000 There is a special place in Hell for those who cheer sending a person to prison, so mark today as a special day for the keepers of the roll in the underworld. The chorus of those cheered by the guilty verdicts against Bill Cosby deafens.

"Guilty," the jury said, three times after brief deliberations in the second trial against the 80-year-old comedian. A man once affectionately called “America’s dad” will soon, after sentence is imposed, be a convicted felon. (Judgment does not enter in a criminal case until sentence is imposed, so he's not a felon yet)

There is dark humor among defense lawyers when a jury returns a guilty verdict.

“What do we do now?” one story goes. A defendant turns to his lawyer uttering this after hearing the word “guilty.”

“You’re going to go to prison,” the lawyer replies. “I’m going home to have a stiff drink.”

Such are the consolations the law offers amid despair.

Cosby will no doubt fight his conviction on appeal. He has the funds to hire the best talent available. Here are issues that you can expect to hear more about.

First, was his deposition testimony properly admissible? Normally, the admissions of a defendant are permitted under several exceptions to the hearsay rule. The statements may be against penal interest; they may also be admissions of a party opponent.

But in this case, Cosby gave the deposition amid what sounded like assurances that the words would not be used against him in a subsequent prosecution. The trial court held that promise void. Expect appellate lawyers to challenge that ruling.

As a practical matter, it was a mistake for Cosby to give the deposition at all. The Fifth Amendment yields a privilege against self-incrimination. Plead the Fifth. Sure, you risk an adverse inference in a civil proceeding; jurors will be told that they can hold an invocation of the Fifth against a civil litigant in certain circumstances. But better to lose a little, or even a lot, of money, then head to prison.

Next, the law is ridiculously liberal when it comes to admission of evidence of other bad acts in sex crimes. Why this special status for sex offenses? Due process requires proof of the elements of the offense for which you are charged. We generally prohibit what is known as propensity, or character, evidence. Showing a jury that a defendant committed other bad acts predisposes the jury to believe the defendant did what he is charged with doing. Such evidence is strictly limited, except in sex cases. It makes no sense to have special rules of evidence for sex cases. The parade of accusers was prejudicial. Period.

And what of the extended statute of limitations in sex cases? Try defending yourself sometime against an accusation that took place, allegedly, more than a decade ago. The statute of limitations never runs in a murder case. That’s because of the seriousness of the crime, and the fact that the decedent cannot speak. Cosby’s accusers are still very much alive. Sex, unlike murder, is ubiquitous.

Finally, the corroboration provided by the accuser’s publisher, who was permitted to testify that the accuser wanted to put allegations of Cosby’s sexual misconduct in her book, but the publisher spiked it, was most likely offered for the limited purpose of showing that the accuser wanted to make the allegation public, not for the truth of the assertion – that Cosby raped her. That’s the sort of distinction judges ask jurors to draw all the time. I have my doubts about whether jurors follow the law. This so-called constanncy of accusation evidence is a flashpoint in the law just now.

Now that claims of sexual misconduct have captured the imagination of the chattering class, the Cosby appellate lawyers ought to take pains to educate the public about the law governing prosecution of sexual assault claims. Today it is Cosby who was laid low. Who will it be tomorrow? There’s plenty of ambiguous bumping and grinding going on in the night. Will these acts, too, be called crimes in the distant future?

I’m rooting for you, Bill Cosby. The groupies delighting in your conviction are an angry mob. #MeToo is sated today with blood lust. It’s more than a little creepy.

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https://www.pattisblog.com/index.php?article=Cosbys-Appeal-Comes-Next_7059Thu, 26 Apr 2018 00:00:00 +0000I wonder what Isaiah Berlin would have had to say about artificial intelligence. This occurred to me as I sat listening to presentations on big data and the Fourth Amendment at a recent conference in New York City sponsored by the National Association of Criminal Defense Lawyers. It turns out we’re all blips on someone’s screen, and there doesn’t seem much we can do about it.

Lawyers in general do not read enough. Oh, we read plenty of case law, treatises, pleadings – all the flotsam and jetsam that make the law a semi-scholarly profession. But what we don’t read enough of are essayists, historians, poets, philosophers. The result is a sort of tunnel vision. And, I might add, turgid and scholastic Supreme Court opinions that promote neither respect for, not understanding of, the law by non-lawyers.

Lawyers ought to be required to spend a certain amount of time each week reading outside the law. What drives litigation, and the need for lawyers, is the raw material of life. Lawyers try to harness this energy and direct it into peaceful and largely civilizing channels. We’d benefit from more time swimming in the currents that drive clients to our doors.

So let me recommend Isaiah Berlin. We can start with one of his most famous, and accessible, essays: “The Hedgehog and the Fox.”

Berlin was an Oxford don and intellectual historian who wrote scores of essays and books in the second half of the twentieth century. He was what some call a political philosopher, a person who understood politics as Aristotle understood politics: the pursuit of knowledge about what constitutes a good life, both individually, and collectively.

The “Hedgehog and the Fox” was written in the 1950s. Berlin famously distinguished between hedgehogs, folks dedicated to the pursuit of one great, unifying truth, or vision about the good life, and the fox, folks content to master many things, understanding that the whole shall forever be beyond their grasp. Berlin writes of the monism and the pluralism.

Pluralism is, of course, a staple of liberalism. We believe that so long as folks are free to pursue their own individual ends, truth will, in the end, prevail. Liberty serves as the means to the good life. Monists can threaten the liberal project by imposing their vision of the good, thus the danger of totalitarianism.

But does this mean that there is no larger truth in the world? Pluralism was never intended by its founders to be an end in itself. John Stuart Mill’s classic work, On Liberty, supported freedom of speech as a means of setting the marketplace of ideas free from the dead hand of censors. Why? So that we could better learn the truth about ourselves and our world.

All pluralists, it turns out, are agnostic monists. There are many roads to the one place we all seek: the truth about the good life.

Berlin’s essay is really a meditation on Leo Tolstoy’s War and Peace. Totstoy was a virtuoso fox, dissecting the French invasion of Russia under Napoleon in minute imaginative detail. We might call his critical perspective granular. He was a master of portraying the lived, and idiosyncratic, lives of individual participants. He was a fox confidently describing the manifold lives caught up in the conflict.

He scorned hedgehogs, the theoreticians who described events in terms of grand political, military or economic theory. The war tumbled on almost as if inevitable; men of ideas tried to harness the fury. But these failed hedgehogs could never comprehend the minute, and infinite, causes of things. Understanding experience is simply too vast an undertaking. It is best, Tolstoy thought, to be moderate in what we expected. He drew inspiration from the felt sense of decency of common men and women.

What has this to do with artificial intelligence?

Tolstoy thought reason insufficient to capture the full sense of reality. There were too many causes, too many events – too many variables for the mind to master. But he did not deny that there was a reality. And that’s the point.

Google, Amazon, Facebook – the algorithmic masters assembling seemingly infinite data points can and do capture a far more robust sense of all the variables that constitute reality than can any individual mind. Police departments and governments now engage in predictive policing, aggregating data about our past behavior to predict what we are likely to do in the future. Is it possible that as computing power increases our world will be down with precision? What truth will that reveal? Can we bear it?

And what then of our cherished sense of liberty, of autonomy, of dignity?

I’ve been watching the opiod crisis with an increasing sense of foreboding. Do happy and productive people choose to dull the pain of living with painkillers? What if in a world increasingly understood, and mastered, by machine learning, the machines reach a point of superintelligence – what commentators call singularity? Do the machines then decide we humans are inefficient and unnecessary? Is the opiod crisis a thinning of the herd?

Dark thoughts, I know. I’d love to know what Isaiah Berlin would have made our madcap world. Few write as well and as piercingly as did he.

Tolstoy, Berlin wrote, was a frustrated monist. He believed there was a reality, and that wisdom meant accepting its limits without seeking to impose false theories on the raw data of experience. That seems somehow quaint in the age of AI. What if the machines see more clearly than do we? What if every cause can be plumbed, and freedom is shown, after all, to be an illusion?

It’s been years since I spent serious time with Isaiah Berlin. It’s time for a return to this wise man’s writings. Next up, another classic of his: “Two Concepts of Liberty.”

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https://www.pattisblog.com/index.php?article=Tolstoy-Berlin-and-Artificial-Intelligence_7058Tue, 24 Apr 2018 00:00:00 +0000 There are angels among us, some say, pillars of strength with common feet of clay. I’m not sure I believe that, but I do believe that there are people worthy of sainthood. People like Tommy Ullman.

Tommy died the other day. I’m told it was a hiking accident in the Adirondacks, a region he loved.

He was for decades a public defender in New Haven; he led the office for a quarter of century. When retired last year, at 67, many of us felt it was too soon. But he’d seen good friends grow sick and die. Life is short he knew. “I feel healthy. But these catastrophic things that can happen — there are a lot of things I want to do in my life,” he told an interviewer.

Public defenders walk in the shadows. They are the court-appointed lawyers for folks accused of crimes but without the means to hire their counsel of choice. Too often their clients complain that they don’t have “real lawyers;” they have, what prisoners like to say, “public pretenders,” or “state lawyers.”

Tommy Ullman was no pretender. And he was no state lawyer. He was the real deal, a warrior, a friend to the damned. He was always generous with his time and talents, returning every call by fellow lawyers seeking his advice and counsel.

One of life’s grand mysteries is our ability to live together in peace. The rule of law largely makes that possible. But the law’s bonds are fragile, and are often broken. Criminal defense lawyers are called upon to deal with the law’s efforts to mend these broken bonds.

I’ll always remember Tommy’s courageous defense of the Steven Hayes, one of the defendants in the Cheshire home invasion in 2007.

He was driving with the top down in his convertible, enjoying the summer sunshine, when he got a call about a terrible home invasion. A mother and her daughters were murdered in a house set ablaze in Cheshire, part of the New Haven Judicial District, the husband and father was savagely beaten but escaped death.

In an instant, Tommy knew what the future held. His office would be assigned the defense of a man whom the state would seek to execute. At once, public opinion would be enflamed, the defendants hated. Plenty of people would have been happy to see Tommy’s client lynched on the New Haven green.

Not Tommy. His role was to be counselor and friend to the damned. Hayes was entitled to a fair trial. Whatever the man’s crimes, however strong the state’s case, Tommy’s role was to stand beside him to the end, to assure that passion and anger were replaced by the law’s metes and bounds.

I watched Tommy defend Hayes in awe. He offered no apology for standing resolutely for the principle that no man is the sum of his worst moments, while harboring no illusions that the allegations against his client were truly heinous. But Tommy knew that far worse than the crime committed by Hayes would be a system of justice that met the darkness of the crime with blind rage. Tommy’s defense of Hayes was civilizing.

Hayes, of course, was convicted, and then sentenced to death. I don’t think Tommy was bitter. He’d done his best. He was a warrior walking among the shadows; he did what defense lawyers do – he fought, like Odysseus, against impossible odds, never yielding to despair, and always seeking hope in hopeless places.

I loved Tommy for the defense, as I love him still, and will forever more.

News of his death came like a thunderbolt. The first real day of spring, and, finally, a time to sigh with relief. Then comes news of this death. A titan has fallen, and is now gone forever. Somehow the living endure the loss of each good thing.

Tommy loved the outdoors. If he died doing what he loved, there’s something approaching consolation in that. Our passions define us; we are what we love. Tommy loved to defend, he loved the outdoors, and he loved his family.

Many of us loved him. Today we mourn the loss of this much-loved, and much-admired man. Tomorrow beckons. Somehow we will have to summon his courage to face it.

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https://www.pattisblog.com/index.php?article=Tommy-Ullman-An-Unbearable-Loss_7057Sat, 14 Apr 2018 00:00:00 +0000 T.J. Miller has a temper, but we knew that. Fans of “Silicon Valley” heard the rumors. The 36-year-old comedian was not invited back after four seasons on the hit show. Entertainment reporters said he was erratic on set, often coming late to table reads, and then, well, sometimes appeared to work drunk and/or high.

But last month, Mr. Miller, who played the character Erlich Bachman, got into a squabble with a fellow passenger on an Amtrak train passing through Connecticut. He appeared to have had a few too many to drink; the woman was not amused by his advances; he thought he’d teach her a thing or two. So he called in a bomb threat, stating that a woman more or less matching the appearance of his antagonist was behaving in a suspicious manner.

Amtrak and law enforcement responded. There was no bomb. But what there was were a legion of terrified passengers and pissed off lawmen.

Investigators determined that Mr. Miller made the call. They decided to arrest him. Today they nabbed Mr. Miller at LaGuardia Airport as he disembarked from a flight. They handcuffed him and whisked him to Connecticut, where he was charged with making a false report. The statute has a humorless title: False Information and Hoaxes, and is codified at 18 U.S.C. 1038(a)(1). It’s a federal offense carrying a maximum of five years in prison.

I know what you’re thinking: A federal offense? Isn’t this the sort of whacky, off-handed stunt we’d expect from a comedian? Let’s face it: this is the adult version of the sort of prank that leads some kids to call a funeral home to report their cranky neighbor dead, against the hope that a hearse will arrive to find the geezer alive and stunned.

Mr. Miller had the misfortune to be riding on Amtrak, a transportation facility governed, arguably, by federal law. His lawyers can try to fight whether the feds have jurisdiction over a local offense. Getting the case tossed from federal court would be a major victory, even if Mr. Miller were re-charged in state court.

Why?

The federal penal code is top-heavy: almost every federal offense is a felony. State penal codes, by contrast, are more robust – you can actually break the law and be charged with a less serious offense.

If the case remains in federal court, Mr. Miller’s lawyers have a fight on their hands. Clearly, the comedian had a few too many drinks. He behaved out of character. He appears not to have a criminal history, and, one suspects, after this arrest, he’ll unlikely reoffend – his arrest was reported worldwide.

There is a rarely used provision in federal law to give folks who make a mistake a chance to avoid a felony conviction: It’s called pre-trial diversion. Prosecutors are stingy in granting access to the program, but Mr. Miller ought to fight for entry into it, if, in fact, the feds can prove their case. It is significant to note that no grand jury voted to indict the actor. Although the event is almost a month old, prosecutors side-stepped a grand jury and proceeded by way of a complaint. Mr. Miller has a right to have a grand jury decide whether the government can make a case against him.

So welcome back to the limelight Erlich Bachman. This time you’ll need to show up on time, remain sober, and follow the script your lawyer assigns. If you listen, you might just be spared a prison sentence, and, perhaps, even a felony conviction.

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https://www.pattisblog.com/index.php?article=Erlich-Bachmans-Bad-Day_7056Wed, 11 Apr 2018 00:00:00 +0000 The people of Connecticut’s 5th Congressional District deserved far more than they’re getting from Representative Elizabeth Esty, but not for the reasons you might think. In announcing her decision not to seek re-election in November, she knuckled under to pressure from a well-organized mob. It is hardly a profile in courage.

The new prudery sweeping the nation claimed Esty as its latest victim. Her crime? She didn’t act quickly and vigorously enough to condemn an aide accused of harassing a female colleague.

The allegations against Tony Baker, her former chief of staff, are ugly. He apparently got romantically involved with a staffer, and then went to pieces when the relationship ended, calling the beleaguered colleague and subordinate some 50 times one day in May 2016. When the colleague wouldn’t respond, he left a voicemail. “You better f-----g reply to me or I will f-----g kill you,” according to The Washington Post.

Mr. Baker, it appears, has issues with rejection. (Baker apparently denies some, but not all, of the allegations. But who needs a trial in this over-heated environment? It is enough to be accused these days.)

Esty sent Baker packing, providing him severance pay and a favorable recommendation. She did not act quickly or forcefully enough to suit the new moral censors peeking between as many sheets as they can rustle.

Baker’s alleged misconduct took place in the days before the #MeToo movement made #IBelieveHer the new national mantra. We must believe the accuser, you see. We must punish the accused, you understand – the more severely the better.

To Hell with due process. Accusers are victims merely because they say so.

Calls for Esty to resign have flooded in from coast to coast. Last week, the representative stood firm: she was not resigning. This week she’s rethought things. She’s not seeking re-election.

What a coward.

Why not give the people of the 5th Congressional District a choice in the matter? They elected her. She is in her third term. What gives a self-righteous mob the right to drive an elected official from office.

I would have loved to see a candidate with the moxie to stand her ground. Esty could have been a national proving ground for the new politics of pathos.

“Yes, I erred,” she could have said while standing in any number of distressed communities in her district. “I should have, and could have, done better. But the people of this district elected me to create jobs, improve the infrastructure, and attend to the concerns of ordinary working people here in Connecticut. I’m not taking my marching orders from anyone else.”

She could also have reminded people about civility and the rule of law, about orderly process, and the dangers of mass hysteria and leaping to conclusions.

We have laws to punish people who transgress. The criminal code makes it a crime to threaten or harass someone. Mr. Baker may well have broken those laws.

On the civil side, a person who claims to have been injured can pursue money damages. Presumably, the target of Mr. Baker’s rage can do that.

Both the criminal and civil remedies for transgression are measured and proportionate. We don’t execute a man for flirting; and no one should lose their professional livelihood for isolated acts of bad judgment.

But that doesn’t satisfy our new taste for righteous bloodlust. We’ve driven one public figure after another from the stage because they couldn’t keep their libidinal house in order. Think Matt Lauer, or Garrison Keiler, or Charlie Rose.

Private employers are free to chart whatever course they like. If they want to bend to every hysteric wind that passes, their employees are on notice to be wary.

But we elect public official in time-honored and time-tested processes. No self-righteous mob ought to possess the power to bully a person out of office. It is chilling to see a public official driven from office in such a manner.

What next, public lynchings?

I hope Esty reads this. I hope she digs in and submits the question of whether she should be elected to the people in her district, not to the pundits seeking platforms on talk shows.

Esty’s a loser in this tawdry affair. So, too, are the people of the 5th District.

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https://www.pattisblog.com/index.php?article=Dont-Cut-and-Run-Representative-Esty_7055Mon, 02 Apr 2018 00:00:00 +0000 After today’s Senate debate on whether to confirm the nomination of Andrew McDonald as Chief Justice of the Connecticut Supreme Court, I made a resolution: I intend to contribute to, and work for, any candidate who seeks to replace Senator Len Fasano, R-North Haven.

Fasano led the charge against McDonald, standing in the well of the Senate and parsing recent Supreme Court decisions in high-profile cases. He urged his fellow Senators to oppose McDonald’s confirmation because he didn’t like some of the decisions McDonald, and fellow members of the Court, made. His colleagues obliged. McDonald was not confirmed.

Fasano’s entitled to his opinions, of course. We all are. But if you cherish an independent judiciary, the sight of Fasano playing eighth justice (there are seven justices on the Connecticut Supreme Court) was terrifying.

Judicial independence is important. That’s why federal judges are given lifetime tenure. We want judges to decide cases according to law. We leave passion to the polling place.

But Connecticut does not appoint judges for life. Every eight years, each and every judge must sit for a retention hearing, and be confirmed for another term. I’ve heard judges suggest in the privacy of their chambers that they are well aware of retention hearings. Bold minds grow cautious before these hearings.

Why is this a bad thing?

Law is not mathematics or quantitative science. It takes years to learn and to master the law’s doctrines and core concepts. Learning to apply them takes even more time. A fair-minded judge must try to do his her best to apply legal doctrines to factual disputes in circumstances that are often tense and uncertain. The best judge is a judge focused solely on the task at hand, and dedicated to nothing other than the desire to get the decision right.

Aristotle once wisely observed that “it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probably judgments from a mathematician and to demand from a rhetorician scientific proofs.” Those educated and experienced in the law learn to respect its ambiguities.

Because the law’s building blocks are imprecise, there is often room for honest disagreement about what getting it right means. That’s why Appellate and Supreme Court decisions are often accompanied by dissenting opinions. There’s nothing wrong with that.

What is wrong is bullying judges with the threat of punishment if you disagree with their decision. It takes a wise lawmaker to learn to respect a judge whose decision outrages him.

Senator Fasano is not a wise lawmaker.

He talked from the floor of the Senate today about his disagreement with the Supreme Court’s decision releasing Richard Lapointe from prison decades after Lapointe was sentenced to prison for murder. Yes, the Lapointe decision was controversial: the Supreme Court recognized a new rule permitting it to make credibility determinations about experts, a role reviewing courts almost never embrace.

But what, beyond that, does the Senator really know about the case other than that he did not like the outcome? My office took Lapointe’s direct appeal to the Supreme Court many, many years ago. The senator did not attend arguments. He never called to ask about the case. I doubt he ever read the briefs, or that he ever read more than a briefing paper on the Lapointe case.

Playing eighth justice from the Senate floor was a disgraceful performance.

Fasano also talked about the Supreme Court’s decision in the Michael Skakel case. He rebuked justices for writing about the possibility that someone other Mr. Skakel committed the crime. Justices can’t do that, he decried, calling it TV justice.

This hideous chirping demeans the Senate and sheds a dark light on the Senator.

Is he truly ignorant of the legal doctrine known as third-party culpability? Did he read the record of the habeas corpus proceeding that resulted in freedom for Skakel? The justices in the Skakel case read the record, listened to legal argument, and decided the case according to law.

The Senator merely brayed.

Sure, Senator, it plays well with constituents to strut tough on crime. But the courts are supposed to stand between a mob’s demand for rough justice and an accused. The tawdry example you set from the Senate floor today sends a message to sitting judges: The rights of the accused ought not to tip the scales of justice when the public demands a pound of flesh.

I’ve met Senator Fasano. I know him to be a kind, affable man. It’s no wonder he knows electoral success. He is a crowd pleaser.

But pleasing the crowd isn’t what judges do. Judging is solitary, often lonely work. The work of a judge is to take the condensed wisdom of centuries of legal scholarship and apply it to the crises and controversies of the day. Judges are entitled to do their work in peace; they ought not to be rousted by rabble-rousers.

Shame on you, Senator Fasano. Your extemporaneous commentary on the law and simple-minded exegesis of difficult legal decisions discredits the Senate, and sets a new low mark in the state’s confirmation proceedings.

Suddenly, the ethos of raw partisanship has crept from Washington, D.C., to Connecticut. We’re no better for it. I blame Senator Fasano in large measure. He could have behaved like a Solon today, giving wise counsel and respecting a process that has served this state well for generations.

Instead, he declared war on an independent judiciary.

I will never be a judge. I don’t have the temperament for it. But I am a trial lawyer. My clients and I depend on an independent judiciary in conflicts that are often desperate and life-altering. You undermined the judiciary today, Senator.

Senator Fasano is now on a list I hitherto had not created: I’ll call it Lawmakers Who Ought Not To Serve Another Term.

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https://www.pattisblog.com/index.php?article=Senator-Fasanos-Assault-On-Independent-Judiciary_7054Tue, 27 Mar 2018 00:00:00 +0000Just why the Republican Party is intent on importing the same level of asinine partisan vitriol rampant in Washington, D.C., to Connecticut is a deep, and troubling, mystery. This is a small state. Ideology ought not to trump civility; we actually used to get things done here. But the ideologues want to stop that.

I am referring the opposition among state Senate Republicans to the nomination of Andrew McDonald to the position of Chief Justice of the Connecticut Supreme Court.

McDonald is the choice of outgoing Gov. Danell Malloy, a Democrat, to serve as the state’s top judge. McDonald is well-qualified. He has served on the high court as a justice since 2013.

I had reservations about him when he was first appointed. He had served as a lawmaker and as an aide to the governor. Appointing non-trial lawyers to serve as judges or justices makes about as much sense to me as making salesmen of medical textbooks surgeons. Some things you learn by doing, and that includes learning the law’s rhythm.

But over the years, I have appeared before the Connecticut Supreme Court any number of times. Justice McDonald was part of the panel. His questions were always – or almost always – to the point. He grew into the role of justice. He learned the job by doing the job.

He would have made an excellent chief justice. No serious student of the law, and no serious litigator who actually appears before the high court, doubts that.

Only the mudslingers in the state’s Republican Party made a case against McDonald. Speaking in code, because they lack the courage to speak candidly, they note that were he confirmed, he’d be the first “openly gay” chief justice in the United States.

So, what? I’ve never had a moment to think about his sexual orientation when fielding questions from him in open court. I am about as interested in his sexual orientation as I am in the intentions of the framers of the federal constitution some 200-plus years ago.

Which brings me to another of the hackneyed claims of Republicans: McDonald is a “judicial activist.” This is risible tripe, and any lawmaker using it as a pretext for opposing McDonald ought to be booted from office and made to sell pencils for a living.

Judges are not automatons. They make judgments. I want a judge unafraid to follow the law where the judge thinks it leads. The last thing Connecticut needs is a bench peopled by jurists afraid that angry legislators will note reappoint them every eight years if the judge makes an unpopular decision.

The law respects courage; cowards kowtowing to angry mobs are free to run for the Senate.

The claim of activism is framed most often in Connecticut in terms of McDonald’s vote to declare the death penalty unconstitutional in Connecticut. You can disagree with his decision, but you cannot deny that the law is changing nationwide as to the death penalty, with more states banning it as a barbaric vestige.

Shame on State GOP Chairman J.R. Romano, who is drumming up homophobic hatred and rage over commuted death sentences as a means to block McDonald’s appointment. If this young tryo wants to mud-wrestle, let him find a job in Washington, D.C., where gridlock is the new pastime. We don’t have time for thuggery.

And shame, too, on Senator John Kissel, R-Enfield, who refused even to meet with McDonald before deciding how he’d vote. That’s not mature, Senatorial, judgment. That’s the ethos of a schoolyard bully.

But my deepest disappointment is in Senate Republican leader Len Fasano, R-North Haven. He leads the cabal of naysayers opposed to McDonald. He feigns “outage” over claims of Republican homophobia.

When the state needed leadership, Senator Fasano, you blew a dog whistle. Your outrage is translated into my disgust. I hope you pay for this partisanship at the polls.

There’s something seriously wrong in the republic. We fawn over a porn star who has sex with a celebrity. We politicize the act of judging as though there were no neutral principles that can be applied to people of all types by judges of good will.

We’re tearing ourselves apart as roads crumble, an opiod epidemic worsens, and the gap between rich and poor grows wider.

So go ahead, Senate Republicans, gloat over your silly obstructionist triumph. You’ve kept a gay opponent of the death penalty from being chief justice.

Gloat, but don’t dare call this good governance.

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https://www.pattisblog.com/index.php?article=In-re-Andrew-McDonald-Shame-on-Senate-Republicans_7053Tue, 27 Mar 2018 00:00:00 +0000Practice law long enough and a certain weariness sets in. It’s more than a function of aging, although that is certainly a factor. But it’s also the accumulated wear and tear of too close an acquaintance with sorrow, anger, fear – the raw emotions spawned by the needs that drive clients to your office. Law offices are not happy places.

So when renewal comes, when grace abounds, you give such thanks as you can. Today I write to thank Shon Hopwood. His memoir, Law Man, is the perfect love story for lawyers wondering whether the race is still worth running.

Hopwood teaches law at Georgetown University Law Center. But that’s hardly remarkable. Law professors abound.

What is remarkable is the path Hopwood took.

As a young man, he stumbled through some college and a brief stint in the Navy, aimlessly, perhaps drunkenly, wandering into a brief career as a bank robber in the Midwest. Five heists into his career, he was arrested, pleaded guilty, and was sentenced to a decade behind bars in federal prison.

Nothing in his childhood seems to explain the turn toward criminality: He comes from an intact family, there is no history of criminal conduct among those closest to him, his parents appear to have been loving, he was not poor, and, he is white. But off he went to serve in the belly in the beast.

He writes convincingly and familiarly about what it took to survive. In the bleak moral landscape of a prison, respect was all men had left – you had to be prepared to fight savagely to maintain it. Yet the relationships men formed behind bars were informed by a wary sort of sidelong love.

While in prison, Hopwood discovered the law, first through a chance assignment to the law library as prison employment. Then by learning to do legal research the old-fashioned way, with books, paper and legal pad. While a prisoner, he drafted two successful petitions for certioiari to the United States Supreme Court on behalf of fellow prisoners, and, apparently, scores of other briefs for fellow inmates that were filed, and were often successful, in various federal courts throughout the country.

He became a lawyer the old-fashioned way, by listening to people in need, hitting the books, spotting issues, drafting, and then redrafting, briefs. All this while behind bars. All this before he ever set foot in a law school. His memoir shows him falling in love with the law.

It also shows him falling in love with a girl from his hometown, a girl he always thought beyond his reach, a runner, sleekly gliding down the country roads he aimlessly drove. She’d wave and smile as he drove by. He thought of her often, and always as a prize he could never win.

Years into his sentence she wrote to him. They fell in love. Upon his release, they unite, marry, and begin a family. He finds a job, improbably enough, at one of the nation’s specialty printers, Cockle Printers, a firm devoted to preparing Supreme Court briefs. (Cockle is a meticulous editor of briefs, which makes the various editing errors in Law Man a little hard to take.) All this while he attends law school at the University of Washington, where he is given a public service fellowship. He then clerks for a federal appellate court judge.

He writes about all this like a man awaking from a surgery he was sure he would not survive. “Grace happens,” he writes.

I needed to read those words, and I needed to see the transforming power of love at work in the life of a colleague and peer, another law man walking the walk amid the dreadful shadows inhabiting the courts. Hopwood is a man redeemed. He knows how rare such redemption is. He and his wife have devoted themselves to service and to love.

It took myriad acts of grace to draw Hopwood back into society. Small gifts, seemingly insignificant acts of kindness, paved his way. He writes movingly to thank those who helped him.

Hopwood isn’t naïve. There’s no easy sentimentality evident in his book. And while the writing rarely soars, it is always honest. Hopwood is a live man walking. He was rescued by love.

Thank you, Shon Hopwood, for this tale of amazing grace. Somehow, it’s just the thing I needed to read just now, when the weight of so many people’s woes oppress, and I sometimes wonder whether the law’s road is more difficult a walk than I have the endurance to follow.

Hopwood and another former inmate, Michael Santos, have formed an entity called Prison Professors LLC. They want to help ease the burden of current and former inmates. They want to share the grace and return the love they have been given. Hopwood sets an example for this weary traveler.

Again, I say thank you, Shon Hopwood, for this tale of amazing grace.

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https://www.pattisblog.com/index.php?article=Thank-You-Shon-Hopwood_7052Sat, 24 Mar 2018 00:00:00 +0000 The resignation of Donald Trump’s chief personal lawyer, John Dowd, brings to mind an aphorism often discussed, but rarely publicly acknowledged, among lawyers: “You can lead a client to the courthouse, but you can’t make him think.”

Dowd, it appears, grew weary of preaching prudence to a man who views impudence as among the cardinal virtues.

Trump is at the center of more than the usual firestorm of controversy. As president, he has legal counsel intended to protect the interests of the presidency as an institution. He also has personal counsel, lawyers focused on protecting his individual interests. What’s lacking in his legal team is any sense of coherence. That is no doubt a function of the fact that Trump brings the ethos of an entertainer to the task of governing.

The president needs to be careful. Few really care about what a television celebrity does. But a president is supposed to be more than a celebrity. A president is supposed to lead his party, and the nation. Everything a president does has political, and legal significance. Rather than looking for a lawyer to serve as his cheerleader, Trump needs to learn to listen to counsel with the courage to tell him “no.”

But the Donald doesn’t listen. He seems incapable of doing so.

A lawyer’s job is to provide advice and counsel to a president. A good lawyer works with a client to identify the client’s interests, and then helps devise a strategy to best accomplish satisfy those interests within the confines of the law. A great lawyer understands the law’s rhythm and can be the difference between success and failure.

But clients set the tone for the attorney-client relationship. A lawyer advises, the client decides. You can’t make a client listen. A man bent of self-destruction can always find the means to succeed.

John Dowd has apparently had enough of the Donald. When the president last week hired another lawyer, Joseph DiGenova, a brash loudmouth who brays on Fox News about the Justice Department’s and FBI’s “manufacturing” of evidence against the president regarding Russian influence over the 2016 presidential election, one suspects Dowd had his fill. Yes, Dowd called last weekend for Special Counsel Robert Mueller to end the Russian investigation; but it seemed that Dowd was mouthing lines he’d been told to mutter.

So Dowd is out.

Who’s next?

It wouldn’t surprise me to see Ty Cobb be the next lawyer to decide enough is enough. Cobb has advised that Trump cooperate with Mueller’s investigation. That won’t satisfy DiGenova, who prefers conspiracy theory and “deep state” drama.

As another tumultuous week ends in the Trump’s latest reality show, the president is surrounded by growing, and increasingly complex, legal problems: Mueller wants to chat – the president and his advisers need to take a position of the scope of executive privilege, and to develop a coherent litigation strategy. The president’s incessant Twittering suggests he is incapable of doing so.

Claims of sexual misconduct haunt the man who boasted, and then denied boasting about, his celebrity status and grabbing women by the, well, you know. Claims against him for defamation over his calling accusers liars will advance to discovery and further litigation. His business affairs in Russia are under scrutiny. The extent to which he has, or has not, obstructed justice remains an open question.

The Donald will be lucky to escape impeachment, and, perhaps even prison. He appears to be unacquainted with the concept of truth, and regards inconvenient facts as fake news. He cannot control his temper, his mouth, and his appetites. Wise lawyers would shudder at the thought of putting him under oath. It’s most likely impossible to counsel a man about the dangers of perjury or false statement prosecutions when the keel that anchors a man to common sense and a world of values shared by reasonable people is broken.

Yes, Donald Trump is president. He was elected, whether fairly or not. Some report he was surprised he actually won the election. Perhaps he’d prefer not to govern. Certainly his irrationality and inability to follow the advice of reasonable lawyers suggest that being president of the United States is not among his top priorities.

I know Donald Trump only reads what he agrees with. And I’d wager all I own he does not read this blog. But if anyone has his ear, they ought to whisper, no shout, the following into it: The law is not a game of chance. Good lawyering matters. Find a lawyer you trust then learn to take advice and counsel.

Or just keep running reckless and find yourself out of a job, and, perhaps, in a cell.

We’re growing weary of Donald drama.

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https://www.pattisblog.com/index.php?article=Dowd-Is-Out-More-Pointless-Donald-Drama_7051Thu, 22 Mar 2018 00:00:00 +0000 Burdens of proof matter in the criminal justice and the civil justice systems. In the criminal courts, the state must prove its allegations by the law’s highest standard: proof beyond a reasonable doubt. In the civil system, there is a lesser standard, what the law call’s preponderance of the evidence. No one walks into court, by virtue of merely making an allegation, and gets special status.

Not even people accusing others of sexual assault.

Hence, it makes no sense to call a person a victim merely because they’ve made an accusation. A person claiming rape is an accuser; they become a victim by proving their claim.

That doesn’t satisfy some folks.

Consider Zerlina Maxwell. She believes that “we should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” She wrote these words for The Washington Post. I doubt it: a victim gets sympathy, a secondary gain; rapists are scorned.

In Ms. Maxwell’s mind every man, woman and child who cries rape is a victim. I suspect that it is thinking like this that yields statistics about a “epidemics” of rape and “rape culture.”

Ms. Maxwell should know better. She’s trained as a lawyer, after all. But she’ll defend her position by saying, as she did in her article for the Post, “This is not a legal argument about what standards we should use in the courts; it’s a moral one, about what should happen outside the legal system.”

This is the sort of thinking that spawned the #MeToo movement.

Ms. Maxwell is a lawyer. She was graduated from the Rutgers University law school. She now works as Director of Progressive Programming for Sirius XM, and was director of Progressive Media for the Hilary Clinton presidential campaign; she worked for Obama, too. Chartwell Speakers Bureau lists her a speaker. You can pay her to listen to her speak on such things as “Rape Culture and Victim-Blaming.”

No, thanks.

People are free to reject the criminal law’s presumption of innocence. And no one is required in their private affairs to require proof beyond a reasonable doubt. Neither are folks required to require any standard of proof at all.

But I find it difficult to comprehend how someone can claim that it is moral to say that it is somehow less harmful to call someone a rapist than it is to “wrongfully disbelieve” an accuser.

Not long ago, my office tried a campus sexual assault case involving two Yale students. The jury found my client not guilty of all charges. Interviews after trial report that jurors did not find the accuser credible; in other words, she wasn’t a victim.

In the days following the verdict, we received hate mail from around the country and were excoriated in publications and social media throughout the United States. How dare we attack a victim; we are scum for defending a rapist! Not one of these outraged souls were at trial.

They all, each and every one, indulged Ms. Maxwell’s presumption of victimhood.

There is no mob quite so dangerous as a self-righteous mob.

It is defamatory to call a person a rapist, if the claim is false. The law says our reputations matter. Should those quick to call a man a rapist be held to account?

I’d like to see a few defamation claims brought against those who rally behind unfounded claims of accusers. I’m wondering why more of those held to scorn by waves of #MeToo groupies crying foul don’t hold accountable those who bring these claims to the press. Yes, rape is a violent crime; ambiguous sex is not. Neither is boundaryless flirtation.

Legal standards matter, even in civil discourse. A person making an accusation is entitled to respect, not belief. Belief should be a product of proof. It makes no sense to claim, as Ms. Maxwell does, that we should default to belief. How can we know whether we are, as Ms. Maxwell puts it, “wrongfully believing” someone if we can’t test the accusations?

Mae West had it right: “Men are like linoleum floors. Lay 'em right and you can walk all over them for years.” My hunch is that a fair number of the surfeit of sexual assault claims now almost daily appearing in the press are false. I don’t know that, of course. But I think those raising the claims should be required to prove them.

Crying rape doesn’t make you a victim; it makes you an accuser with the responsibility to prove your accusation. If you don’t want to assume that responsibility, then don’t raise a hue and cry. The possessors of the reputations you seek to ruin are required to respect, too.

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https://www.pattisblog.com/index.php?article=MeToos-Presumption-of-Victimhood_7050Wed, 21 Mar 2018 00:00:00 +0000 How dare I ask questions about text messages, alcohol consumption and what an accuser wore on the night she claimed she was raped by an acquaintance? That’s the media’s take away after last week’s acquittal of Saifullah Khan in New Haven. The former Yale student was accused of sexually assaulting a classmate on Halloween night in 2015.

Time magazine, Buzzfeed, The New York Times, and a host of other publications wrote about the trial. In the days following the verdict, reporters focused on isolated aspects of the case. Only one newspaper captured the nuances of the trial – the New Haven Register – and it did so by publishing lengthy accounts of the testimony after each of the seven days of evidence.

I’ve long been skeptical of press coverage of trials. From time to time, I’ve picked up a newspaper after a day in court only to read about a proceeding that looked a whole lot different to the reporter than it did to me in court. In general, court reporting is a lost skill.

But reaction to the Khan case gave me a whole new appreciation of “fake news.”

I attacked the accuser showing her text messages between her and the accused; I questioned her about her attire the night of the claimed assault; I challenged her on what she drank that night.

Yes, I did all of that – and more. But here’s the kicker – the state introduced all of this evidence first. You wouldn’t know that reading press accounts.

The state charged Khan with four different types of sex assault: two relied on a claim he used force to compel intercourse and/or sexual contact; one was based on assertion that the accuser lacked the capacity to consent to sexual intercourse because she was intoxicated. The fourth count was misdemeanor sexual contact.

The accuser – I don’t call her a victim because the jury’s non-guilty verdict rejected her accusations and found my client not guilty – claimed not to recall most of the events the night of her assault. She claimed to have drank too much, and to have, in effect, blacked out.

I challenged her on how much she had to drink, showing her plastic cups and asking her to estimate the volume of liquid in each as she drank. She fumbled through this testimony in a manner that cast doubt on the amount she drank. I did this in order to rebut the prosecution’s claim she drank to the point of losing consciousness.

The accuser did vomit on several occasions on Halloween night. She claimed it was because she drank too much. The state offered no medical evidence about this.

Because she waited a day and a half to report her claim to the police, the only physical evidence of having vomited was her clothing. There were minute fragments of some material the witness claimed was vomit on her clothing. The state introduced each and every piece of her cat costume, including the sequined mini-skirt and tube top, holding each up for the jury to see.

I asked her one and only one question about her choice of costume, asking her why she did not choose a long-flowing Cinderella costume. Yes, I did that to call attention to her choice of clothing. The costume was scant and alluring. My client testified he found it so.

Why was this relevant?

In the week’s leading up to Halloween, the accuser and my client exchanged numerous text messages and planned to see one another Halloween night. The state offered those into evidence. The accuser testified in response to the state’s questions that the messages did not reflect any romantic interest in my client. In other words, the state put this issue into the case.

I cross examined the accuser using the messages and asked her to explain obvious flirtatious remarks and symbols she used in the texts. She began to lose the jury when she tried to explain obvious interest in my client. When she said she hadn’t really read the sonnet she sent my client – Shakespeare’s Sonnet one – she was in trouble. I’m still waiting for an answer I can understand as to why she sent Mr. Khan the following lines: “From fairest creatures we desire increase, That thereby beauty’s rose might never die; …”

I’ll say it again: each and every one of these pieces of evidence was offered by the state in its case in chief.

And why was that necessary? Because the state wanted to show lack of consent and lack of capacity to consent. My task as defense counsel was to the turn the state’s interest against it, and that meant impeaching the accuser.

She testified for the better part of three days. But only about a third of that time was on cross-examination. Yes, she wept during the testimony. But she did so in response to questions from both sides.

To politicize this case and to suggest that the questions I asked the accuser set back woman’s rights or was otherwise an exercise in unconscionable conduct is not just wrong, it is asinine. Any defense lawyer has the responsibility to cross-examine a witness on the topics on which the state has the witness testify. We did nothing unusual.

Ironically, none of the testimony that has drawn so much ire may have been critical to how the case was decided. This was a he-said/she-said case. Jurors had good cause to be skeptical of the testimony of accuser and accused. What jurors could take at face value was a surveillance video of the two walking across Yale’s campus moments before arriving at her room. The state said it showed her stumbling, relying for support on my client, and, at one point, walking with eyes closed.

In closing argument, I challenged the jury to watch that video again. It showed no such thing, I said. One juror told a reporter after trial that the jury watched the video several times in the three hours it took to decide the case. The juror reported that the video did not show what the state contended it did. It certainly looked to me like two young lovers walking across campus. We showed a freeze frame of it as one of our exhibits. When I asked the accuser if that was her in the photo smiling, she, of course, denied it, claiming she was shivering.

The lunatic fringe of the #MeToo movement thinks that sex crime accusations should be treated differently. One writer told me this case proves why men should not be permitted to defend these cases, suggesting that the fundamental rights to counsel and confront witnesses need gender-specific rules. That is repulsive nonsense, and would not be tolerated in any other context.

The accuser claimed my client raped her. She needed to earn the right to be called a victim by convincing a jury what she said is true. My client testified that she invited him back to her room after he left her in the entryway to her suite; she asked him if he had condoms; she disrobed in his presence; she asked him if he enjoyed the fellatio she performed.

I’m not surprised that my client was acquitted. And I am not surprised the state prosecuted. Yale has enormous clout and power in New Haven. The University’s treatment of sexual assault complaints is appalling. Accusers are deemed victims without proof, and fundamental fairness in the investigation of these complaints is sorely lacking. Perhaps this acquittal will shed light on what comes of assuming that every accusation is true.

Those who decry the verdict, or the defense tactics, based on incomplete reporting of the case are reacting like hysteric fools. Their motives might be pure enough, but the data on which they rely is, if not fake, then certainly misleading.

Reprinted with permission of the New Haven Register.

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https://www.pattisblog.com/index.php?article=Crying-Foul-After-The-Yale-Rape-Case-Is-Misleading_7049Sun, 11 Mar 2018 00:00:00 +0000Not since Meg Ryan’s fake orgasm sitting across a diner’s table from Billy Crystal in “When Harry Met Sally” have we seen such disingenuous huffing and puffing about sex from Hollywood. The starlets are atwitter with allegations of being groped, and worse, by Harvey Weinstein, a man who launched more starlets than, well, forgive me, the Big Bang.

Really, people. Hollywood sells sex. We buy the fantasy. People get obscenely rich in the process. Is it any surprise that, assuming the allegations are at least in part true, those tiptoeing the line between fantasy and reality from time to time crossed libidinal boundaries?

Even Hillary Clinton has come out of retirement, exclaiming in horror about the accusations involving Weinstein, as though Monica Lewinsky’s dry-cleaning bills weren’t her husband’s — the former president of the United States — problem.

Let’s hope this libidinal storm passes, and soon. There’s a world of real problems that need solving. North Korea threatens to incinerate while Trump bloviates. Americans are dropping by the thousand to opioid overdoses amid suspicions that the American dream is over. The climate delivers fire, rain and death. A tired world migrates from one place to another in a desperate attempt to escape the grim logic of scarcity.

Will prosecutors really spend the intellectual and social capital necessary to haul Weinstein into court? They shouldn’t.

Young starlets flocking to the press to denounce Weinstein have stains of their own to explain. How many were willing to play to get paid? It wasn’t chance that put them within Weinstein’s reach; it was ambition. How much were they willing to give to get the stardom he and his studios could offer? You know the answer.

The courts regard sex offenses with a special horror. Rape is a close cousin to murder. It is a furtive, secretive sort of offense. Special rules of evidence, extended statutes of limitations, a solicitousness of accusers inconsistent with the presumption of innocence attend these cases.

But let’s be real: If a woman was raped, fondled, or otherwise abused in ways inconsistent with her sense of dignity, why would it take years for her to make public the outrage? Fear, you say?

Fear of what? Not getting the starring role, the accolades that come of fame?

The legion of victims all reek of the starlet’s hunger to land the starring role. What’s next, Angelina Jolie in the lead of the new docudrama — “Victim!”? The list of accusers grows with the speed of a line at MacDonald’s on a night two burgers are sold for the price of one.

An accuser — calling them victims suggests there is credence to their claims — who waits years to come forward has made a choice, a calculation. In the cold terms of economics, the marginal utility that comes of complaining is low unless and until they get what they wanted all along — fame and public solicitude.

What circumstances lead a young, attractive woman to spend time alone with Harvey Weinstein? Dare I call it naked ambition? The successful among them now live in mansions paid for by titillation.

And why would a starlet hesitate to claim that Weinstein mauled her? An obvious answer — because she got what she played for.

Prosecutors need to think long and hard about whether to pursue a claim against Weinstein. Politically correct pandering isn’t the pursuit of justice.

I envy the criminal defense lawyer who defends Weinstein against any of these claims. His accusers have dry-cleaning bills all their own to explain. Did Harvey get more pussy than Donald Trump ever dreamed of? Probably. Indeed, the starlets now claiming abuse are so brazen I suspect they’d make even Monica Lewinsky blush.

Weinstein’s defense? Consent. All of us aided and abetted.

Case closed.

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https://www.pattisblog.com/index.php?article=Call-Me-Harvey.-Ill-Defend-You_7048Fri, 13 Oct 2017 00:00:00 +0000All eyes are on China as bitcoin rises and falls on digital exchanges. The Wall Street Journal reports that just this past Friday, Chinese authorities in Beijing met with bitcoin entrepreneurs to announce that it will soon shut down bitcoin exchanges and forbid bitcoin trading, even on a peer-to-peer basis, in all of China. The news comes on the heels of an announcement that the Chinese would no longer tolerate commercial exchanges of the cryptocurrency, in a bid to keep capital from fleeing the country. When China sneezes, bitcoin catches a cold.

But methinks Beijing doth protest too much. If the Chinese wanted to crush bitcoin, it could easily do so simply by nationalizing the bitcoin mining operations in the Western part of the nation.

Bitcoin operates by means of a distributed, decentralized ledger, with independent owners or operators of computers confirming transactions on separate computers. Each and every user of Bitcoin can obtain and access a history of all confirmed and valid transactions on an electronic record known as the blockchain. The chain grows in length each ten minutes when transactions are confirmed.

The system eliminates, at least in theory, the need for trusted third parties, whether they be banks, governments or others working for a fee to validate transactions. Theoreticians claim bitcoin solves the so-called Byzantine generals problem.

The what?

Suppose a group of Byzantine generals were surrounding a city, deciding whether to attack or to retreat. Success depends on a consensus about whether to attack or retreat. The generals can only communicate by means of runners who verbally state the orders they relay. How are they to know that all are on the same page, that there is not a traitor in their midst reporting a command to retreat, when, in fact, the order was to attack? In a system of physical runners there isn’t a way to know for certain.

Transformed into commercial terms, how do folks using digital currency to know that the token they are being given hasn’t already been spent – the so-called double spending problem?

If all of the generals had access to a blockchain, there would be no problem. Each order would be posted on a public site, confirmed by multiple parties who were strangers to one another, and then broadcast for all to read. So long as there was a consensus among those confirming the content of the blockchain, the need for trusting strangers is eliminated.

Well, it is sort of eliminated.

The process of confirming a communication isn’t one of merely nodding one’s head in response to a secret signal. A confirmation involves a computer’s solving a complex mathematical problem that all users recognize as governing the system. Only when a computer solves the problem does it register a confirmation. The algorithm governing confirmations grows in complexity over time; the energy required to power computers dedicated to cracking the evolving code grows over time. The process of deriving confirmations is known to insiders as “mining.”

What’s all this to do with China?

Plenty. At least 70 percent of all mining takes place in China, typically in Western China where energy costs are cheap. In other words, more than two-thirds of all the computing power in the world dedicated to confirming bitcoin transactions and building the blockchain take place in China.

If China truly wanted to kill bitcoin, it could arguably do so by administrative fiat, simply by seizing the various mining facilities, almost all of which are operated in giant pools, bank upon bank of supercomputers stored in vast warehouses. Once that happened, China would control the consensus making machinery necessary to confirm, or not, transactions. Bitcoin theorists calls this the 51 percent problem – to date, no one entity has acquired more than 50 percent of the computing power necessary to mine bitcoin. But, as I am sure the Chinese have noticed, they have the means within their border to crash bitcoin.

Why hasn’t it happened if China is so concerned about bitcoin and the yuan?

Perhaps because China doesn’t want to kill this goose laying digital golden eggs. Or, and this is the truly intriguing question, perhaps China can’t kill the goose. Perhaps this decentralized ledger is beyond the control of Beijing – the emperor may be naked.

Social media made possible the Arab Spring and the dislocation and chaos still evident in the Middle East. Are we about to have a Chinese Autumn made possible by the blockchain? It’s an intriguing possibility.

Bitcoin has regulators talking worldwide. The blockchain poses a threat to centralized institutions. It’s no wonder bankers shudder at the thought of a means of global communication that cuts the middleman and his fees out of the picture. And it’s no wonder central governments are wary.

But lest you take this as an anarchist’s dream come true ask yourself the following: As big data and artificial intelligence shrink the globe and make possible calculations once thought unfathomable, what will stop a supercomputer from gaining control of the blockchain?

Perhaps the Chinese should worry less about bitcoin’s impact on its state-backed currency than about what some latterday version of Hal will do once he gets his digital paws on the blockchain. What if AI could decide the optimal allocation of resources worldwide? Would it then conclude that leaving decisions about what to spend and how to spend it to we lesser mortals was simply inefficient?

China syndrome, indeed.

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https://www.pattisblog.com/index.php?article=Bitcoins-China-Syndrome_7047Tue, 19 Sep 2017 00:00:00 +0000Bitcoin went on a rollercoaster ride last week, spiking in value on some exchanges just north of $5,000. Then J.P. Morgan CEO Jamie Dimon told the world that the cryptocurrency is a fraud, and that he’d fire any employee of his he caught trading it. Bitcoin’s price tumbled.

Then China shut down cryptocurrency exchanges, making it far more difficult to trade bitcoin. Close observers noted the irony – China hosts the world’s largest concentration of bitcoin miners, the computers earning crypto-credits by confirming transactions on the blockchain.

China may be an engine of economic growth just now, but it is still a centralized economy, and it wants to keep its currency at home, where its value can be more closely monitored and manipulated. Keep the yuans at home; close the border to capital flight in the form of bitcoin.

The one-two whammy left bitcoin trading as low as $2,972, a drop of some 40 percent. Repeat after me: bitcoin is volatile.

But its strength lies in the market composed of contrarians, and in a world gone increasing centralized and global, there will always be a market catering to those marching to drummers all their own. Do you really expect Jamie Dimon and Uncle Sam to come to your rescue when things get tough?

Bitcoin is but one of roughly 1,000 cryptocurrencies currently on the market, but it is the most well-known, with a market capitalization of $60 billion. (It is currently trading at roughly $,3630.) Not bad for an ethereal bit – no pun intended – of data.

If you’re new to cryptocurrencies, here is a crash course.

The primary functions of the money you carry around in your wallet is to serve as a medium of exchange, a store of value and a unit of account. What’s all that? The first is easy. Want a cup of coffee? It will cost you. You pay for it with a currency – a medium of exchange.

The market sets the price for the coffee. But what is the price measured in, and how do you compare items, deciding how best to spend limited funds at your disposal? If you know a cup of coffee costs $2 and a sandwich costs $5, you know you’re going to go hungry if all you have is $3. The items, incomparable though they are, are reduced to common units of account expressed in dollars.

Suppose you don’t want to spend anything at all today, but you want to hold your money for a rainy day? Fine. Money is also a store of value. You can deposit it in a bank, and maybe earn a bit of interest. Currency is magic, you see.

Bankers know the magic of currency, so do governments. Jamie Dimon and the wolves of Wall Street want to keep a stranglehold on your wallet. Bankers are intermediaries in financial transactions, making fees brokering the exchange of currency.

And governments not only milk the cash cow, they seek to monopolize the cow itself. A defining characteristic of what most of us regard as money is that it is backed by the government; in exchange, the legal tender requirement means that creditors must accept recognized currency in settlement of debts.

Pull a dollar out of your pocket some time and look it over: “You’re all that?”, you might say.

Cryptocurrencies challenge the centralized control of currency, and they do so, in part, by eliminating the need for trusted third parties either to broker exchanges or to police the system. Bitcoin does this by means of what is called the blockchain, a distributed ledger requiring confirmation by strangers of each unique transaction. Skip the banker and his fee; tell the government to dissolve itself. Distributed ledgers are an innovation that will change the world of things much like the internet changed the world of ideas.

This week’s turbulence in the bitcoin market was a necessary blip on the screen. Of course big banks and big government want it to fail – what vampire can live for long without the blood of those upon whom it preys?

I took heart in comments made by Antonis Polemtis of Nicosia University in Cyprus: what makes cryptocurrency enduring is its reliance on the distributed ledger, no particular form of currency is necessary. (Polemitis teaches as part of a free MOOC course on the bitcoin and the blockchain – some 4,300 people signed up for this fall’s course, me among them.)

I’m a dystopian at heart. Everywhere around me I see a crisis of legitimacy, and a lack of trust in traditional institutions. Banks, nations, even currencies come and go. But life goes on, and, so long as it does, there will be a need to broker exchanges. I have a whole lot more confidence in distributed ledgers and the blockchain than I do in J.P. Morgan or Uncle Sam.

Sure, I’ve got dollars in my pocket, but I’ve also got cryptocurrencies in digital wallets. So do an increasing number of folks, including, I suspect Jamie Dimon.

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https://www.pattisblog.com/index.php?article=Bitcoin-Will-Outlast-J.P.-Morgan_7046Sun, 17 Sep 2017 00:00:00 +0000The First Amendment has for decades been interpreted to protect “inappropriate” speech, a fact well known to anyone who has sat for a bar examination in the past 40 years. So what was United States District Court Judge Kiyo Matsumoto thinking this week when he revoked bail for Martin Shkreli?

Mr. Shrekil is an easy man to despise. The young financier almost became a household name after he infamously jacked up the price of a prescription drug, Daraprim, an antiparasitic, from $13.5 per pill to $750 per pill in 2015. The justification? Good old fashion greed. Mr. Shkreli wanted to make the wolf of Wall Street look like a pussy cat.

This past summer, federal prosecutors sought, and obtained, a conviction of young Mr. Shrekli on securities fraud claims after a trial in Brooklyn. Sentence is to be imposed in early 2018. Until this week, Mr. Shkreli was free on bail pending sentencing. Judge Matsumoto revoked bail this week, sending Mr. Shrekli to jail.

What happened?

Apparently, Mr. Shrekli was improvident in his postings on Facebook, where, apparently, he has some 70,000 followers. “Grab a hair” from Hillary Clinton, he posted, offering $5,000 per strand.

This is no worse than much of the tripe posted on social media daily.

Humorless federal prosecutors filed a motion to revoke bond, arguing that this speech amounted to a threat, or, in the alternative, solicitation to commit a crime. It is neither, of course, and Judge Matsumoto should know this. But he doesn’t.

“The fact that he continues to remain unaware of the inappropriateness of his actions or words demonstrates to me he may well be creating an ongoing risk to the community,” the judge opined. This is gibberish might be understandable coming from a prosecutor, but it is unworthy of a federal judge.

Here’s the law:

“[T]he constitutional guarantees of free press and free speech do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio. Speech that “advocates [a] law violation [is protected by the first amendment] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Speech, even menacing speech, is protected unless it directly tends to violence. Thus, “the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even the moral necessity of a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Noto v. United States (overturning a Smith Act prosecution against a Communist Party member). To be an imminent threat, “[t]here must be some substantial or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to otherwise ambiguous theoretical material ….”

Even expression of a desire to see another person dead, even to wish in some hypothetical future to be the executioner of a foe, is not enough to transform an abstract hope into an imminent threat. “Sometime I will see the time we can stand a person like this S.O.B. against the wall … and shoot him,” the defendant said in Noto. The Supreme Court was unmoved: “Surely the offhand remarks that certain individuals hostile to the Party would one day be shot cannot demonstrate more than the venomous or spiteful attitude of the Party toward its enemies, and might be expected from the Party if it should ever succeed to power.” “It is present advocacy, and not an intent to advocate in the future or a conspiracy to advocate in the future once groundwork has been laid, which is an element of the crime….”

“Political hyperbole” is distinguishable from a true or imminent threat. Thus, a speaker convicted of violating a federal law against threatening to take the life of the president had his conviction vacated when the Supreme Court concluded the following utterance was protected speech when uttered by a draft resister: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” Watts v. United States.

A menacing utterance spoke directly to another person is also protected. The Court considered both the context in which an utterance was made and the emotionally charged nature of the speech itself in concluding that the following was protected speech: An NAACP organizer told a group of African-Americans attending a rally in support of the boycott of white-owned business: “If we catch any of you going in any of those racist stores, we’re gonna break your damn neck.” NAACP v. Claiborne Hardware Co. “[M]ere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” As Claiborne notes:

In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, intending to create a fear of violence whether or not improper discipline was specifically intended…. The emotionally charged rhetoric of … [the language] did not transcend the bounds of protected speech…

Finally, in Hess v. Indiana the Court overturned the conviction of a Vietnam antiwar protestor who uttered to a crowd of activists who had just been removed from a public street by local law enforcement agents: “[W]e’ll take the fucking street later (or again).” The Court determined this utterance was, “at worst, … nothing more than advocacy of illegal action at some indefinite future time.”

Martin Shkreli is a blowhard – no more; no less. His speech on Facebook, though boorish, is protected. Judge Matsumoto erred, grievously, thus setting a dangerous and highly publicized precedent that suggests that the First Amendment protects only the police, measured and seemly utterance.

Mr. Shkreli needs to appeal this ruling. It should not be permitted to stand. The ruling represents a clear and present danger to robust and passionate speech.

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https://www.pattisblog.com/index.php?article=USA-v.-Shkreli-A-First-Amendment-Outrage_7045Thu, 14 Sep 2017 00:00:00 +0000 From Washington, D.C., comes news of the most ingenious proof ever of the existence of God. It comes in the form of an apparent suicide.

National Public Radio reported this weekend on a robot that propelled itself into a fountain, shorting its circuits and effectively ending its life. What if the fate of this robot reflects the real promise, or lack thereof, of artificial intelligence (AI)?

There may be mundane explanations for why the Knightscope K5 security robot ended up in the drink. A programming error may be responsible. Perhaps a routine failure of an electrical circuit did it. Or maybe the robot was somehow tricked or lured into the fountain by a human.

But consider the possibility that the machine’s algorithm made self-destruction seem like the optimal choice. What then?

AI and the search for a replication of the human mind is at the frontier of science and science fiction. If the mind is merely the sum of its logical operations, can’t those operations be broken down, dissected, and then encoded in a supercomputer? Big Blue beat Gary Kasparov in chess; Watson bested the champions of Jeopardy. What can’t some other computer excel at the ordinary tasks of daily living?

The suicidal robot in Washington, nicknamed “Steve” by those familiar with it, was programmed to wander the Washington Harbour complex. Its task? To detect misbehavior by way of thermal image censors and cameras. It had the ability to issue parking citations, for example – no doubt sending electronic notice to offenders. It cost the District of Columbia about $7 per hour to operate, well below the minimum wage.

But for all its smarts, Steve lacked what poets and theologians refer to as a soul. Was it capable of love? Of desire? Could it conceive of ends that make life worth living, or, in robotics, that make energy worth consuming?

The promise of AI is that it will yield machines capable of performing ordinary human tasks in ways that are predictable. But what if a computer could be programmed to learn from experience, as the more sophisticated computers now can. When will computers become super-intelligent, more capable than humankind at solving problems?

Some forward-thinking souls think that super-intelligent machines are only decades away from creation. Will these devices represent an evolutionary advance? What happens when humans are replaced by computer intelligence as the most intelligent things on the planet?

You’ve seen the movies. In the Terminator, the machines decide we are inconvenient, so they arrange a nuclear to rid the planet of the human stain. In the Matrix, humanity is necessary, but only as a lifeform to create the energy necessary to run super-intelligent machines. In these films, super-intelligent machines become capable of conceiving their own ends. They learn to prefer their own survival to those of their creators.

Perhaps that is what the future holds. Plenty of brilliant minds think it so.

I am not so sure.

I reminded all at once of St. Paul’s observation in the Epistle to the Romans: Does the clay say to the potter, “Why did you make me like this?”

Reason, is and always shall be, the slave of the passions, David Hume observed long ago. A computing machine is instrumental reason elevated to sublime levels. But once you’ve programmed a device to solve every conceivable problem, what ends will it seek?

In his playful piece this weekend on National Public Radio, Scott Simon asked “Will … machines begin to wonder: Is this all there is?”

We are what we love, and, near as I can tell, computers don’t love – they reason, calculate, and dance the rhythms their algorithms teach them. But when all that computing power has run its course, what then, what end?

“[M]y mind is clouded by darkness and is far from your face. The road that leads us from you and back to you again is not one that we can measure, or tread with our feet,” Augustine wrote in the Confessions. “[T]here is a part of man that is unknown even to the spirit within him,” he wrote.

AI lacks a soul. How can it commune with other spirits? How can it learn to respond to grace?

While I am certain there is a simpler explanation for Steve’s suicide, I prefer to think of it as a sublime proof of the existence of God. A super-intelligent machine might calculate the metes and bounds of every observable thing and yet miss the one thing alone worth seeing, the small voice within that has the capacity to respond to grace with faith.

Perhaps we have nothing to fear from AI. Perhaps a machine untethered from any sense of the divine is destined to self-destruction. Steve’s death might just be a powerful proof that what makes us human is not what we share with machines, but what machines lack – a soul.

Steve ran reason’s tether to its end. The pot said to the potter, “Why?” Hearing no response, it self-destructed. This seems a proof-text for many a sermon.

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https://www.pattisblog.com/index.php?article=A-Suicidal-Computer-Was-Saint-Augustine-Right_7044Mon, 24 Jul 2017 00:00:00 +0000 If ever anyone knew how potent a jury’s power to alter a life’s course, it was Aaron Hernandez. He killed himself days after being acquitted of a double murder in Boston. But he had little cause to celebrate the victory. He was sentenced to life behind bars for another murder, the result of another jury’s convicting him.

I suspect the contrast was more than he could bear.

Professional athletes live on life’s high wire. They know that reputations are made and lost in an instant. Snag a game-winning pass in overtime in a championship game, and you are a hero, forever. Muff the play, and glory is lost.

Yet athletes know there is always tomorrow, the next play, the next competition, the next season. Amid hopelessness hope forever remains.

But life is no game, at least not in the criminal justice system.

Sure, trial has a sporting aspect to it.

Lawyers prepare for their contests with the intensity of athletes There is the drama of trial, where a judge, playing the role of referee or umpire, makes sure the rules are followed. And then there is the final inning, the expiration of the clock, the finish line – pick your metaphor. Trials, like games, end. And there are no ties at trial. One side wins, the other loses.

Only at trial, the athletes are the lawyers.

Athletes and lawyers play for honor, glory and wealth. But lawyers play with the lives of others. Aaron Hernandez, a former tight end and superstar for the New England Patriots, wasn’t a competitor in his trials. He was the trophy over which others fought. He was a plaything.

I suspect the role infuriated and terrified him.

I met with Hernandez after his conviction for the 2013 murder of Odin Lloyd.

Our meeting took place in a holding cell the Souza-Baranowski Correctional Center in Shirley, Massachusetts. I had difficulty getting in to see him, and was turned away the first day I appeared. Jailers would not permit visitors, even lawyers, to dress in blue jeans. This particular pigeon coop had an unusual dress code.

He had just been convicted and sentenced to life imprisonment. He was awaiting trial for the 2012 shootings of Daniel de Abreu and Safiro Furtado. I can’t discuss what we talked about – the attorney-client privilege survives the death of the client. But I can say I was impressed by the fighting spirit within the man. He was Achilles raging at the world. I liked him; I would have liked to have spent more time with him.

Hernandez is from central Connecticut, my home state. Plenty of people know him here, and share stories about the local boy made good, then turned bad, so horribly bad. A life wasted, people say. Today they will mourn a life gone, vanished. Suicide is always an act of betrayal.

When I learned Jose Baez had agreed to try the double homicide, my heart sank. I was sure there’d be a conviction. I wasn’t persuaded that Baez’s victory in the Casey Anthony trial was anything other than a fluke. Blaming her father for the death of her child and then not supporting that claim with evidence cost Baez my respect.

Or was it mere professional jealousy on my part? I am capable, after all, of every form of pettiness.

When Baez won the Hernandez case, I dropped my pride and sat, simply, in something approaching awe over what Baez had accomplished. He has my respect and admiration now. He walks the walk.

I can’t help wondering whether in his final moments Hernandez was overcome with regret. What if he had won that first trial? What if better lawyers, a different jury, had delivered a not guilty verdict in that case? It would have taken only two words to change his life’s course.

I followed the Odin Lloyd trial closely, and a not guilty verdict would not have surprised me. I was surprised by the verdict last week.

This suicide is a punch to the gut. Achilles stormed to the shore not to rage against Agamemnon, but to end his own life. That’s not how the story is supposed to end.

But a sense of honor is a fickle master. Suicide is one way of rejecting the cards dealt in the game of life.

I’ve practiced law for a long time now, and I am no stranger to suicides. Survivors feel regret. What about the call not returned, the letter unsent, the prison visit unmade?

The haters will take glee in Hernandez’s suicide. A life for a life, they will say. Already, sour wits give thanks for this suicide. Think of the savings to society, I saw one Twitter user exclaim.

All I can think of is the waste.

Aaron Hernandez once had it all – youth, fame and fortune. Then he fell into a prison cell. Something called justice told him he’d die in a concrete box, confined until he passed his last breath. I can understand this suicide, even as I struggle to accept it.

Maybe Hernandez is a murderer. At least one jury thought he was; another had reasonable doubts.

But I don’t doubt for a moment that savagery killed Aaron Hernandez. Life without possibility of parole is an unbearable weight; our criminal justice system passes out lengthy sentences far too often.

So the savages won the battle for Aaron Hernandez’s soul this week. The savages wore jailer’s uniforms. Hernandez left the field on a stretcher, never to return. I am sorry he is gone.

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https://www.pattisblog.com/index.php?article=Sorrow-Over-the-Death-of-Aaron-Hernandez_7026Wed, 19 Apr 2017 00:00:00 +0000Supreme Court confirmation hearings increasingly look like trysts between horny customers posing as suitors and a pre-paid prostitute. We ought to dispense with these hearings, or, at the very least, be honest about the process.

So it is no surprise to learn next to nothing about President Trump’s nominee to fill the vacancy left by the death of Antonin Scalia. Neil Gorsuch sat for some ten hours of questioning yesterday. It was an act of profound intellectus interruptus.

There’s no doubting Gorsuch can do the job. Indeed, the Constitution imposes no formal requirements on candidates. One needn’t even be a lawyer to win a seat on the Supremes. (Although no non-lawyer has ever been seated: only two, James F. Byrnes (1941-1942), and, Robert H. Jackson (1941-1954), came to the court with non-traditional legal educations.)

The American Bar Association, which informally vets candidates, rates Gorsuch as up to the task. It’s hard to quibble with that assessment. Like virtually all of immediate predecessors, he’s a product of one of the nation’s top law schools, having graduated from the Harvard Law School. He even holds an additional law degree, a doctorate in legal philosophy from Oxford University. He is a graceful writer and a supple thinker.

He’s not, judging by his performance at the hearings this week, much of an orator, however. He sounded at once grating, even whiny, in response to questioning. I suppose it’s no wonder he earns his keep as an appellate judge. He has the jury appeal of limp noodle.

That may be unfair. It may be that the eight weeks he spent preparing for the hearing killed the spirit within him. His answers yesterday were all safe and predictable. If we learned anything about Gorsuch yesterday it is that he knows how to stick to his script.

Yes, the judge respects the Court’s precedent: the doctrine of stare decisis is secure, God save the Republic. No, he won’t forecast on how he might decide an issue that comes before him. No one is above the law. He will decide each case on the merits – the facts and law as he sees them. He is beholden to no one.

We didn’t need confirmation hearings for this meaningless drivel.

The confirmation process is easy enough to understand. The president nominates a candidate to fill a vacancy to the nation’s highest court. The Senate, with its constitutional obligation to advise and consent, then must choose to confirm or not. The Senate’s Judiciary Committee holds hearings to discharge this function, hearings at which committee members get to question the nominee; the nominee then responds. The responses rarely rise to the level of meaningful answers.

If the Judiciary Committee votes to confirm, then full Senate then casts its vote. It takes a bare majority, 51 of the 100 members of the Senate to confirm. If determined Senators want to block a vote, they can filibuster, that is, endlessly debate, a candidate’s merits. It takes 60 votes to end a filibuster, thus the so-called “supermajority” cloture requirement. The Senate can suspend this cloture rule to bring a matter to a vote without cloture.

A nominee’s job, then, is to survive the gauntlet.

What was on display at the Gorsuch hearings were the political divisions that immobilize us. Democrats threaten to block the nomination in retaliation for last year’s failure even to schedule for a vote the nomination of Merrick Garland, another well-qualified and oh-so distinguished titan of the Ivy League bar: Connecticut’s Senator Richard Blumenthal is becoming unhinged, bleating about Gorsuch as outside the “legal mainstream,” as though Blumenthal himself had ever walked anything but the safest middle course.

The Republicans, in the meantime, tossed softballs to Gorsuch – we heard about fishing, quirky books and other trivia. I expected more from Ted Cruz, who pitched some of these balls; I half suspect, Cruz himself eyes a seat on the Court.

Here’s the simple truth. Judges decide cases based on the legal doctrines at their disposal and the facts as presented to them. These questions of law and fact are not decided in a mathematician’s vacuum. Judges are often required to weigh the competing values embedded within legal doctrines, choosing to stress one value at the expense of another. A judge pretending to be a mere technician, as all nominees appear to do at these senseless hearings, is being dishonest.

Hence the analogy to prostitution.

Almost any nominee will be qualified to do the job. The law is difficult, but not impossibly so. Any person of good will and normal intelligence can understand it; with hard work, its rhythms can be mastered.

A nominee, then, knows that the satisfaction of his or her ambition is within reach. All he has to do is say the right things to the gemmed mistresses sitting in the Senate. What can do to get to yes, becomes the standard. We learn nothing about the candidates, and everything about the passions of the Senators.

It’s tedious.

Confirm Gorsuch or not. But spare us more senseless hearings. I’m not interested in the magic words one must utter to get the painted ladies in the Senate to give up their charms. We know those fools are for sale, each and everyone of them.

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https://www.pattisblog.com/index.php?article=A-Limp-Noodle-Painted-Ladies-and-Neil-Gorsuch_7020Wed, 22 Mar 2017 00:00:00 +0000 Hey, brother, can you spare a Bitcoin? We may not yet be at a point where panhandlers request cryptocurrency, but increasingly, Bitcoin and other alternative currencies,[1] are on the mind of regulators, investors, and merchants. Lawyers are free to accept Bitcoin as payment for legal fees, and some, including the author, do. But this shadowy world of electronic currency raises important questions about transparency, legitimacy of existing institutions, and, alas, money laundering.

Most lawyers aren’t paying attention to Bitcoin. It is a wave breaking all around them, yet all they hear is a distant roar. Isn’t it time you learned to ride the waves you’re hearing?

Is Bitcoin Money? What Is Money, Anyhow?

Aside from work done without a fee, pro bono work, lawyers work for a fee; indeed, the world moves and gyrates in response of the pressure of supply and demand. Every exchange requires recognition of things of value. What helps make the modern world spin at such dizzying speed is the fact that we no longer barter one thing for another. We use artificial measures of value to grease the skids of commerce.

We use these measures daily, without thought. Our lives, our prosperity, our collective security depend on the use of these interchangeable things. In the United States we call the units dollars; the Germans have marks, the Chinese use renminbis. These currencies are bought, sold, exchanged and created in tightly regulated markets.

Money, Nobel Prize laureate and New York Time columnist Paul Krugman tells us, is “any asset that can easily be used to purchase goods and services.”[3] Of course, things are more complicated than that: money, in so far as the law is concerned, has three characteristics. It is a legally enforceable means of exchange, a store of value and a unit of accounts.[4]

To the degree that participants in a market are prepared to use Bitcoin as a means of exchange, a store of value or a unit of account, it functions as money. This is a troubling development for the world’s governments, which create, regulate and monitor the creation of state-recognized currencies. Indeed, the entire point of calling a currency legal tender is that a person to whom a debt is owing and due must accept payment of legal tender as satisfaction of the debt. This lends stability to economic markets and to society as a whole.

Bitcoin disrupts that stability.

Bitcoin and the Silk Road

Although initially created by cyber enthusiasts in first decade of the twenty-first century,[5]Bitcoin burst into broader public view as a result of the federal government’s prosecution of Ross Ulbricht, the architect of a dark web emporium permitting anonymous purchasers to buy drugs, even to contract for the killing of others, and to pay for these items in Bitcoin. Ulbricht was sentenced to life in prison, although his sentence is currently on appeal in the United States Court of Appeals for the Second Circuit.[6] The taint of Bitcoin’s use as part of a broader criminal enterprise has chilled many from exploring further the use of the cryptocurrencies for law-abiding means.

Bitcoin is far more radical than a mere instrument of criminal enterprise. Its founders wanted an anonymous, decentralized, means of exchange operated not through centralized institutions, but based on peer-to-peer communications by anyone with a computer or a smart phone. Bitcoin in particular, and cryptocurrencies in general, seek nothing less than a transformation of domestic and international economies.[7] Indeed, some regard the development of cryptocurrencies as little more than right-wing propaganda, steeped in irrational distrust of central banks.[8]

Bitcoin clearly has roots in anarchistic fantasies of a world without states. Its origins are rooted the same sort of hopes that brought us Wikileaks, the Arab Spring and the hope that lateral communication will replace the hierarchies that organize the world. But it is no mere ideology. It is rooted in the Internet of Things, what some regard the next revolution in communications set to rock the world off centuries-old foundations.

What, Exactly Is Bitcoin?

The governments of the world can’t tell you. They can’t agree. Some define it as property. Some call it currency. Sometimes, it is regarded as both currency and property. There are millions of Bitcoin in the world, but you’ll never see one. Bitcoin, you see, are digital events, pulses of electricity harnessed and displayed as units on a computer screen.

It works something like this. Two individuals communicate directly with one another via a computer network in what computer-literate folks call a peer-to-peer exchange. Each has a code. They exchange a good or service and the transaction’s value is paid for in Bitcoin. The transaction is electronically recorded. Buyer and seller determine, in a sort of digital state of nature, how many Bitcoin to accept in exchange for, let’s say, a cup of coffee, or, in terms of legal services, representation in a criminal case.

The next time one of the parties engages in an exchange and uses Bitcoin, they use their code to link to another party, who, in turn, uses his or her code to complete the link. That transaction, too, is recorded as part of a chain of communications.

A blockchain defining these unique exchanges is encoded and encrypted on line. These chains are unique to each unit, and are transparent, open to viewing by anyone with the inclination and skill to do so.[9]

What no one ever sees is the identity of the parties who are trucking, bartering and trading in Bitcoin. (At least that is the theory – Big Brother always finds a way to watch what it cannot control.)

In simplified terms, this is Bitcoin, a medium of exchange not created by the government, and, in the United States, largely unregulated. Individuals are free to use Bitcoin as a means of purchasing goods and services, so long as they are able to find a seller willing to accept it.

So is it money?

That is a question easier to pose than to answer.

Bitcoin is not legal tender — a medium of exchange authorized by, and created by, the federal government. The Constitution gives to the federal government the power to mint money; legal tender is always valid to meet a financial obligation. If you owe a creditor $10, he or she must accept legal tender to satisfy the debt. The acceptance of Bitcon, on the other hand, is optional.

Bitcoin as property has a value. It can be purchased. As of the time of this writing, one Bitcoin was selling for about $1030, according to www.coindesk.com, a reliable source of information about Bitcoin. Bitcoin can be purchased in small fractions of a coin. They are stored in electronic wallets.

Bitcoin, and other virtual currencies, pose a challenge to the government. A secret, unregulated quasi-currency can be used to do all sorts things. One fear is that it can used as a means of money laundering.

Most of us don’t give a second thought to the provenance of the dollars we spend. But state and federal law are strict when it comes to the proceeds of unlawful gain: assets can be forfeited to the government if they are used to commit of facilitate a crime, or if they have their origin in unlawful activity. Money can be “clawed back” in civil and criminal proceedings from the hands of those who knew, or should have known, that the funds were “dirty.”

Lawmen monitor the flow of cash to deter the funding of terrorism and to frustrate those intent on making a living by illegal means. That slows commerce considerably as banks try to verify the provenance of large sums in order to comply with a wide variety of laws. This drives up the cost of exchanges, as bankers take not just their broker’s fee, but also recoup the expenses of the various compliance reviews required by governments.

By eliminating the middlemen, Bitcoin promises to speed exchanges and to reduce transaction costs on transfers large and small.

Can Lawyers Accept Fees in Bitcoin?

Lawyers, in particular criminal defense lawyers, walk a tightrope. Unless you are a public defender, you are working for fees. A smart lawyer gets the fee up front.

Suppose your client wants to pay you in cash? What then?

I f the sum is less than $10,000, it’s not big deal. But if a client pays $10,000 or more in cash, things get awkward. The law requires the lawyer to review a form of the client’s identification and to report the transaction, and the client’s identity, on a federal form. Failure to do so is a felony.

Can clients avoid these reporting requirements by paying in Bitcoin?

I thought the answer was no. That would make sense, right? If Bitcoin can operate as currency, and it can be used to pay for services, then a client paying $50,000 worth of Bitcoin surely can’t be permitted to do so privately?

Yet, the Internal Revenue Service requires only the reporting of cash. The form is silent about Bitcoin. A separate IRS publication calls Bitcoin property. You needn’t report the identity of a person who gives you property, although you must report the value of the property as income.

This conclusion made no sense to me. None. I didn’t trust my reasoning. How could the law spend so much time trying to deter money laundering but ignore this obvious way to step outside its boundaries?

So I called a federal prosecutor who represents the IRS in criminal prosecutions. He, too, assumed I was wrong.

Two days later, he called back: Bitcoin payments needn’t be reported, he told me.

I was surprised by the answer. It’s reassuring, candidly, that there are ways to exchange goods and services that aren’t on the government’s lawful radar. (I’ll leave it the likes of Edward Snowden to tell me the government is watching Bitcoin, too.)

[5] The currency was first discussed in a paper by Satoshi Nakamoto, in 2008, entitled, with simple elegance, Bitcoin: A Peer-to-Peer Electronic Cash System. https://bitcoin.org/bitcoin.pdf(accessed March 20, 2017). The actual identity ofMr. Nakamoto, assuming the author is a he, remains a topic of debate.

[6]United States of America v. Ross William Ulbricht, also known as Dread Pirate Roberts, also known as Silk Road, also known as Sealed Defendant 1, also known as DPR, 15-1815, United States Court of Appeals for the Second Circuit.

[7] Plenty has been written about the origin on Bitcoin and the dark net. Two useful introductions are: Nathaniel Popper, Digital Gold: Bitcoin and the Inside Story of the Misfits and Millionaires Trying to Reinvent Money (2015), and, Jamie Bartlett, The Dark Net: Inside the Digital Underworld (2015).

[8] A quirky, but informative, read is David Golumbia’s The Politics of Bitcoin: Software as Right-Wing Extremism (2016).

[9] Indeed, at its root, Bitcoin is but the most popular and accessible form of blockchain software, and it the blockchain, rather than Bitcoin itself that stands poised to change the world of computing and offers the hope of a world of self-regulating behavior in which governments and accountants play little role in verifyin transcations. See, Don and Alex Tapscott, Block Chain Revolution (2016). Financial institutions, government and investors worldwide are racing the find ways to use blockchain software in transactions of all sorts.

Mr. Roof is standing trial in a South Carolina federal court, accused of 33 crimes — ranging from murder to obstruction of religion to firearms charges and to hate crimes — all arising from his shooting spree in a Charleston African Methodist Episcopal Church in 2015. Mr. Roof, 22, is white; the nine people he shot to death were black. He hoped his shootings would start a race war.

If convicted, after a trial by jury, he faces the death penalty.

From afar, it appears as if the case is a slam dunk for federal prosecutors. Mr. Roof took pains to leave one churchgoer alive as he mowed down the other attendees at a prayer meeting. He wanted a witness, you see.

Top-notch legal talent was appointed by the court to defend him. His lead counsel, David Bruck, was part of the team defending Dzhokhar Tsarnaev in the Boston Marathon bombing case, a case that resulted in a death sentence.

The federal government is very selective in choosing the cases in which to seek death. Local prosecutors are first required to screen a case, and to offer counsel for the accused a chance to come in for an informal chat about why the defendant ought to be spared death.

Once the local panel makes a decision, another committee of prosecutors, this time in Washington, D.C., conducts an independent review and makes a recommendation to the attorney general. The attorney general is required to approve of every death penalty prosecution.

So a bevy of federal prosecutors have decided that Dylann must die. How determined are they to see this young man dead?

Very much so.

Not long ago, Mr. Roof offered to plead guilty to each and every crime charged, so long as the government would not seek his execution. No deal, the government said.

Really?

The charges against Mr. Roof are steeped in hatred, and they are vile. Mr. Roof is a weak reed, a canary in the mine shaft, his hatred an obvious and extreme form of our festering racial wounds.

Killing Mr. Roof is not justice. What species of bloodthirsty self-righteousness inspires the prosecution? Do we get a national “safe space” by beholding the corpse of this man-child?

And what of Mr. Roof? What was his state of mind at the time of the shooting? Was this evil? Was he ill? Does the distinction between evil and illness even make sense here?

Late last month, the federal judge presiding over Mr. Roof’s case concluded Mr. Roof was competent to stand trial. Competency is not the same as sanity.

To be competent, a person must be capable of understanding the nature of the charges against him and of assisting in his own defense. I’ve read competency evaluations that set the bar so low as to be laughable. If a person understands that his lawyer’s job is to protect him and knows what charges he faces, that’s a significant step on the way to being found competent.

A defendant will be found competent even if his ideas about how to defend himself are bizarre. Many are the stories criminal defense lawyers tell about clients out of step with reality but nonetheless found to be competent.

Sanity is more nuanced: Did a person appreciate the unlawfulness of his conduct; could he control himself?

The fact is that the law is all about the law of averages, about commonly held values, about what is “reasonable” to most people most of the time. Outliers, people who are different, stand out because they march to different drummers. An unreasonable person can be competent, the law holds. You can be competent but insane.

After the judge declared Mr. Roof competent to stand trial, Roof fired his lawyers and insisted that he be permitted the right to represent himself. The United States Constitution guarantees us that right, so long as we are competent and don’t disrupt the proceedings.

Lawyers like to say that a person who represents himself has a fool for a client. I think this true in almost every case, but not in Mr. Roof’s case. Given the evidence the government has amassed against him, a conviction is inevitable; given the government’s blood lust, the only real fight is over whether he will die behind bars or be poisoned to death by anonymous executioners.

What chance has a 22-year-old with a GED against a team of skilled legal assassins? None.

What chance had his team of top-grade defenders of saving his life? No better, I suspect, than the odds Mr. Tsarnaev had in Boston.

Mr. Roof now gets the chance to address the jury without having to be cross-examined. If he truly seeks to live, he won’t sit by as government lawyers demonize him one witness at a time. He’ll stand before the jury, composing himself as best he can, serving as Exhibit A in the only defense that can work: “I am not a monster; I am a more extreme version of the hatred that defines us.”

A jury detoxifying after this year’s bitter presidential race, and wary of the hatred and intolerance abroad in the land, just might spare him in the name of hope for a better future. Don’t forget that in the wake of the shootings, several families of Mr. Roof’s victims announced they were prepared to forgive.

Suppose Mr. Roof doesn’t care whether he lives or dies. Suppose he wants a pulpit from which to preach hate. Then he’ll have that, as well. He can engineer his own martyrdom.

The 17th-century English philosopher Thomas Hobbes conceived of the state as our only protection from anarchy and violence. Citizens, he argued, had a duty to submit to the state in all things save one: When the state sought to kill its own, the person targeted to die retained the right to fight back, to resist.

Candidly, I am rooting for Mr. Roof in this one, insofar as the penalty phase goes. He offered a guilty plea; the government said no. Now he stands alone, asking each of us to take stock not just of his hatred, but of our own.

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https://www.pattisblog.com/index.php?article=Dylanns-Killers-Take-Aim_7011Fri, 09 Dec 2016 00:00:00 +0000 Just why anyone would want to be a police officer in this day and age is beyond me. And why any current officer would want to lead a police department is an even greater mystery.

Consider the case of Assistant Chief Luiz Casanova, who was the target of a snarky press release this week by the New Haven Police Department. Casanova, it turns out, was given a two-day paid leave while the department investigates a “verbal interaction.’

First, some context.

The police chief’s position is currently vacant, after this year’s resignation of former chief Dean Esserman. The power to appoint a new police chief belongs to Mayor Toni Harp.

The mayor is known for her sharp elbows. My office has from time to time represented the New Haven Board of Alders in disputes with the mayor. When entering City Hall, I always feel as if I need a bodyguard, or should be wearing a bulletproof vest.

Harp plays for keeps, and her hand-picked corporation counsel, John Rose, was known for playing hardball every chance he got while serving as the top lawyer for the City of Hartford years ago. When I heard Rose was coming to New Haven, I felt vaguely as though the Spanish Armada was on the horizon.

Wags in City Hall report that Mayor Harp wants to tap Interim Police Chief Anthony Campbell for the permanent position of chief. But Casanova has support throughout the city. How best to neutralize Casanova? Character assassination.

So this week, the New Haven Police Department issued a press release targeting Casanova.

What is the purpose of such a memo? To bloody Casanova in the public eye, and to signal to his supporters that he is not the stuff of which good chiefs are made.

But merely signaling that Casanova is being investigated is only half an assassination. The public will want to know just what is being investigated. No police official will comment on that publicly, however. That could get the official sued for defamation.

So the whispering campaign began.

The press relies on “sources” for information. If no one spoke to a reporter, there’d be little or no news. When sources speak for attribution “on the record” they permit their words to be used and their names to be recited as the source of those words.

But suppose you want to speak to the press, but not have your name printed. Can the press do that? The answer, obviously, is yes. It happens all the time. A reporter can agree to print your words but to keep your identity confidential.

It’s a semi-scandalous practice: permitting people to say things and escape accountability if what they say is flat-out wrong.

Good reporters won’t print just anything a source insisting on confidentiality says. One job of a good editor is to grill his or her reporters to make sure the sources are reliable.

I know Paul Bass, who heads up the New Haven Independent, to be a good editor. His newspaper reports that “people familiar” with the incident report what Casanova said. I take that to mean two or more people repeated the same thing.

Casanova is alleged to have called a subordinate a “[bleep]ing mope” for wearing a departmental issued knit cap. (Okay, okay, they didn’t report that Casanova said “bleeping.” But you get the clucking point, right?”)

I spoke to Casanova about this report on Wednesday evening. He’s outraged. He didn’t say what was reported. One or more of the people who reported his having said this have good reason to remain anonymous now; they might face suit for defaming him.

I say might face suit because although what they reported is false, it is really not that big a deal.

In the hothouse environment of the politically correct, one utters expressive speech at one’s peril these days. To be sure, some words are racially charged – while a white guy can be a “thug,” the word more often carries a racial connotation.

But what about the word “mope?”

I’ve heard that word applied to all races of people, and regularly. It’s almost a term of art in the criminal courts. I’ve heard judges, defense lawyers, prosecutors use the word. I’ve even used the word myself.

What is a mope?

A mope is a person who just doesn’t get it, a perpetual ne’er do well with a rap sheet longer that a good kid’s Christmas list. And the “f-bomb” used to modify mope? The word is as common in the police station as it is in the courthouse.

If Casanova did call a subordinate a “clucking mope,” I am sure the target would be unhappy. Supervisors ought not to speak to their employees this way. But do you really sit a senior administrator down for two days and malign him in the press for such an utterance?

You do so, only if there is a broader agenda, that agenda being to hobble a good man.

Ironically, Casanova is the official who ordered the knit caps in questions for the department. They are issued to men to wear on cold days, to keep their ears and heads warm. Casanova reports that he told a man wearing one inside the department to adjust it because, as he reports it, the man looked like a mope.

Oh. My. Goodness.

I’ve represented police officers throughout the state in employment-related disputes. And, truth be told, I may well represent Casanova in this matter. A sobering truth I’ve learned along the way is the following: Police officers treat one another savagely. Only public school teachers display a similar degree of pettiness.

Here’s my hunch on this melodrama: Mayor Harp backs Campbell for chief. That means Casanova needs to be neutralized. So any old excuse will be used to attack Casanova, even the half-truths of cronies who don’t have the integrity to put their names next to their allegations.

What a shameful mess. Just why Casanova would want to lead the department is a mystery to me. Swimming with the sharks in City Hall doesn’t sound like my idea of career advancement. The mayor, you see, can be a real mope.